Prohibition on eviction commercial space in enforcement dispute possible?

In the Netherlands if a judgement has been declared provisionally enforceable, the judgement may be enforced. Even if the party against whom judgement is given has instigated an appeal against the judgement. A party against whom judgement has been given can apply for suspension of the enforcement pending the appeal. This can be done at the appeal court (where the appeal is taking place) or submitted to the provisional relief court in an enforcement dispute. An eviction ordered by the court can therefore be countered, if there are grounds to suspend the enforcement. Commercial tenancy lawyer Sander Schouten explains the Dutch procedure on the basis of a case.


Termination of a lease for commercial space

In this case a landlord had terminated the lease relating to a commercial space and had notified the eviction with effect from 1 August 2014. At the request of the tenant, the cantonal court deferred the eviction for a period of one year. When the tenant applied to the cantonal court for a second deferral midway through this deferral, he was unsuccessful. The cantonal court felt that the landlord’s interest in eviction was greater, and rejected the tenant’s deferral request. The landlord wanted to demolish the premises to build a new property. The cantonal court set the eviction date for 28 December 2015.

Enforcement dispute in the event of legal and/or factual error

The tenant initiated a enforcement dispute, but lost. He appealed. The tenant applied for a prohibition on eviction from the property. The landlord was alleged to have concealed information, namely that no demolition notice had been given earlier. According to the tenant, there was a legal and factual error in the judgement.

No appeal available against an eviction judgement!

The appeal court stated firstly that there is no appeal available against the cantonal court’s eviction judgement itself. An application is usually made to suspend an eviction judgement during an appeal. That was therefore not the case here. Invoking a legal and factual error could not benefit the tenant, because this error cannot be rectified on appeal.

Appeal court: no legal and/or factual error

The appeal court considered that it was not established that the cantonal court would have given the tenant a second deferral if the court had been aware of the absence of a demolition notice. This fact was not mentioned at all in the cantonal court’s considerations. it was not the appeal court’s place to make a new consideration of the facts and thereby take account of the demolition notice. That would constitute a disguised appeal.

Revocation of judgement in event of conscious concealment

The appeal court also considered that conscious concealment by a party to a legal action during the proceedings could give grounds for revocation. However, the tenant did not submit an application for this and the period for this had now passed.

Landlord abusing the power to evict?

The tenant also argued that the landlord was abusing its power to initiate eviction. The appeal court felt that a party to a legal action who obtains a (manifestly) incorrect court ruling by concealing legally relevant facts should not (be able to) make use of that ruling. However, it had not been shown that the alleged concealment in this case led to an incorrect ruling by the cantonal court. The appeal court rejected the requested prohibition on eviction.

AMS Advocaten specialised in commercial tenancy law

AMS Advocaten has a broad experience in the field of Dutch commercial tenancy law. Do you have any questions about or legal issues concerning your commercial tenancy?