Are you planning on concluding a lease with a property developer? Or were specific rights, such as a preferential right of lease or a non-competition clause, in the lease very important to you when you entered into the lease? If so, you will naturally also want to be able to invoke those rights vis-à-vis one or more legal successors.

As is well known in the property industry, under Dutch tenancy law the so-called key stipulations transfer to a new landlord by operation of law when the property is sold (Article 226 paragraph 3 of Book 7 of the Dutch Civil Code). But can a preferential right of lease or a non-competition clause be qualified as such a key stipulation? There is no consensus on this. It is also not clear whether or not Article 226 paragraph 3 of Book 7 actually is effective in case the property is transferred while the leased space is not yet occupied.

This could result in the unfavourable situation in which, after the property has been sold, it is unclear whether or not the tenant can still rely on such a clause. Especially in the case of property development, where a property developer will often transfer the property to an investor even before the lease has commenced, a tenant can easily have a rude awakening.

In order to prevent such situations parties must always carefully verify whether or not the passing of these types of clauses to the legal successor is sufficiently guaranteed in case of a sale. For instance, did the parties remember to include a provision in the lease providing for the passing of non-key stipulations to legal successors by way of a contract takeover? And will such an obligation also be included in the deed of transfer as a perpetual clause in order to also protect these rights of the tenant vis-à-vis successive legal successors?