The District Court of Amsterdam recently ruled in preliminary relief proceedings that an IT entrepreneur who had flex space could not be evicted from a multi-tenanted property because it could not be ruled out that the situation involved a lease for business premises.

The party offering the flex spaces is part of a worldwide network and operates a building in Amsterdam in which business owners can make use of the available office facilities. The operator offers various kinds of memberships in the building. The IT entrepreneur’s membership entitles him to a Dedicated Desk in exchange for payment of a monthly fee.

The operator cancelled the IT entrepreneur’s contract and demanded that he vacate the premises on the grounds that the business relationship between the parties was strained (the entrepreneur failed to comply with the arrangements in place by using conference rooms without requesting consent). The contract was cancelled in accordance with the general terms and conditions that formed an integral part of the contract concluded between the parties, i.e. with due observance of a notice period of 3 months.

The title of the contract is not the decisive factor in answering the question of what was agreed between parties. As such, the fact that the contract refers to a membership rather than a lease is irrelevant. The district court’s preliminary view is that what is used by the IT entrepreneur is more than simply renting a specific desk: the membership permits not only the use of the desk, but also use of the building to be able to perform work at the desk.

Based on the facts presented, the contract comprises features of a mixed contract in which not only lease elements but also service aspects play an important part. What aspects must be regarded as decisive in this case, strongly depends on what the parties had in mind before forming the contract.

The district court ordered the operator to continue its contract with the IT entrepreneur for a period of 2 months after the cancellation date, and that this obligation will cease to apply if the IT entrepreneur does not invoke protection from eviction with the time limit set for that purpose.

That means that the IT entrepreneur may stay for the time being and will be given the opportunity to file an application to extend the protection from eviction. Those proceedings will have to establish whether the situation involves a lease for business premises.