If you want to temporarily rent out your home, a “diplomatic clause” can help. This is also known as “intermediate rent. But what is it, how does it work and how should you apply it?
The law and fixed-term contracts
First, we want to take a moment to explain this to you. The law says in Section 271 Book 7 that a fixed-term lease of 2 years or less that is then continued for a fixed term shall automatically change to an indefinite term lease. And there’s just a “period” after that. So there’s no further digression there. So if you are going to renew a fixed-term lease, then when you renew it, it always becomes an open-ended contract. Simply put, in the Netherlands you can only give tenants 1 lease of shorter of max 24 months. So you can give someone a 6-month, 9-month, 12-month or 24-month contract, for example. But every minute that that tenant is in the property longer than that contract gives him equal rights to an indefinite lease without having to sign anything.
My tenant is already in it, can I make a new contract with a diplomatic clause?
Can’t you then provide a new contract with a clause or agreement that can agree otherwise? No, then you are already too late. You should have taken care of this right away with the first lease.
Also, don’t get creative by putting the lease in the name of the tenant’s partner or creating a lease break, because the courts are guaranteed to sweep all these “revolving door constructions” right off the table.
So what should I do to make sure I can get the tenant out?
If you want to temporarily rent out your property because you are going abroad and you are not sure how long you want to rent for, you can resolve this through a “diplomatic clause. This is a clause you include in the lease you sign with the tenant. So this is also called “intermediate rent. You should include this directly in the first lease. If you have not included this and the tenant is already in it, then you are already too late. The diplomatic clause ensures that you can renew the lease again if necessary without the tenant accruing rental rights. What you must realize, however, is that in a fixed-term lease with a diplomatic clause, neither the landlord nor the tenant can terminate within the current lease term agreed upon. As a landlord, if you want to return to that property, you need to give the landlord timely notice of the lease. Our advice is to always do so via a registered letter.
An example of a temporary rental using a diplomatic clause
Suppose you go to America for a year for a work job and you enter into a fixed-term lease with a diplomatic clause for 12 months. The lease commences January 1 of that year. Suppose the work job ends earlier and you write to the tenant after 6 months that he has to move out, so that is not possible. You will have to wait (if the tenant does not cooperate) until the 12-month term is over. Also keep in mind that you must be able to prove urgent own use. If you do not need the property yourself because you have moved in with your boyfriend in the Netherlands, it will probably still be impossible to evict the tenant (if he refuses). If you need to come back from work from abroad and genuinely need your own home again to live there by yourself, then of course you should be able to. The tenant may still refuse. Then you will have to apply for dissolution through the subdistrict court.
What requirements does the law have about being able to terminate on a diplomatic clause (intermediate lease)?
- It must involve the return of the landlord or a previous occupant.
- It must be agreed that evacuation is necessary.
- The lease must be terminated using the diplomatic clause as the ground for termination.
If the tenant does not agree to the termination, the landlord must file a claim with the district court for termination of the contract. The district judge will then assess whether and, if so, when the contract ends.
However, can the tenant terminate earlier with a diplomatic clause?
No, the tenant is also bound by the agreed term. So have you agreed to a 12-month fixed-term lease with a diplomatic clause? Then the tenant must also continue to rent for the full 12-month period and thus cannot terminate earlier. Sometimes there are constructions where a lease with a diplomatic clause is entered into for 2 years and the tenant is allowed to terminate after 1 year. As a tenant, beware: this is not legally watertight. Indeed, legally speaking, a lease with a diplomatic clause is a contract for a CERTAIN period of time for both parties and premature termination is not possible.
Landlord’s notice period under a diplomatic clause
The landlord has at least 3 months’ notice before the contract expires. For example, if the lease runs through December 31, then you as the landlord must give notice before October 1. But please note that an additional 1 month’s notice is added for every year a property is rented with a diplomatic clause with a max of 6 months.
An example. Suppose you are going to work abroad and rent out your home through a lease with a diplomatic clause for 12 months. For example, that lease commenced on Jan. 1, 2017. You and the tenant renew the lease with diplomatic clause for another 1 year each time. Suppose it is now Nov. 30, 2021. You have now been renting the property for 4 years and 11 months. You as the landlord terminate the lease that day (Nov. 30, 2021). However, since you have been renting the property for at least 4 years, the notice period is 4 months. Therefore, the tenant is not required to vacate the property until March 31, 2022. And even if you had not yet rented the property for 4 years, the minimum legal notice period was at least 3 months anyway. So you are way too late to cancel.
What does the diplomatic clause say?
This clause expressly states that the landlord will return to the property. That is an option landlords have as of July 1, 2016. If this (this diplomatic clause) is included in the lease, then you can renew this lease again and again, provided the fixed term has expired. And we need to clarify that last point. Be sure to arrange the renewal in writing each time in a timely manner (before the expiration of the current lease term). You can read an example of how to do that below.
So how do you extend a tenancy or lease under a diplomatic clause?
Then you can easily do that by drawing up an allonge (=addition to the lease) and having it signed by the landlord and tenant. Note that you must renew before the fixed term has come to an end.
Sample renewal of fixed-term lease with diplomatic clause
Here is an example of the allonge you can enter into with your tenant if you want to renew:
The parties have stipulated in article <article number> of the lease agreement that the lease agreement ends as of <date> due to the fact that the landlord himself will then need the property again for his own use. It was agreed in the lease that by this date the tenant must have vacated the property and made it available to the landlord again.
Given current circumstances, it has become apparent that Landlord’s stay abroad may last longer than anticipated. For this reason, the parties have agreed that the lease will end on <new date>. The parties expressly declare that on this date (<new date>) the property will be delivered empty and vacated by Tenant to Landlord.
Date, name and signature Date, name and signature
Advantages diplomatic clause
- During the fixed-term agreement, the tenant cannot set up earlier. You could do that with a normal fixed-term contract (i.e., without a diplomatic clause).
- As a landlord, you can extend the contract (provided you do so before the current lease ends) for another term of up to 24 months each time without the tenant accruing rent protection.
Temporarily renting out your property and need help?
We can help you well. Please take a moment to contact us or call Floris (see below).
Disclaimer: Multiple sources were used to arrive at the content of this article, but the author cannot guarantee the complete accuracy of the information cited. Use of the information contained in this article is therefore entirely at your own risk and the author shall not be liable for any damages arising from such use.