Do you rent out one or more residential properties in the Dutch private rental sector and does your tenancy agreement contain an annual rent increase clause based on CPI, combined with an additional surcharge of, for example, 3%? Then a recent judgment of the Amsterdam Court of Appeal may be highly relevant to you — even if you do not consider yourself a professional real estate operator or institutional landlord.

For many years, landlords in the Netherlands commonly used tenancy agreements providing for annual rent increases consisting of CPI indexation plus an additional 3% surcharge.

However, this judgment demonstrates that such standard clauses may create legal risks, potentially even with retroactive effect.

In this case, the court held that the additional 3% surcharge was unfair and voidable. This may have significant consequences, not only for future rent increases, but potentially also for rent increases already applied and for ongoing rental disputes.

At the same time, the judgment does not mean that every additional rent increase clause is automatically invalid under Dutch residential tenancy law. Rather, the precise wording of tenancy agreements is becoming increasingly important.

Courts are paying closer attention to the transparency of rent clauses, the justification for additional surcharges and whether a fair contractual balance between landlord and tenant is maintained.

Background: what was the case about?

The judgment builds upon an earlier preliminary ruling of the Supreme Court of the Netherlands of 29 November 2024.

In that ruling, the Supreme Court held that a Dutch residential rent adjustment clause should be divided into:

• an indexation clause; and
• a separate surcharge clause.

The Supreme Court further considered that a surcharge of up to 3% is, in principle, not automatically unfair.

However, the specific circumstances of the case remain decisive.

This is precisely where the recent Amsterdam Court of Appeal judgment becomes relevant.

Why the court considered the surcharge clause voidable in this case

The tenancy agreement in question provided for annual rent increases:

• based on the Dutch consumer price index (CPI); and
• supplemented by an additional 3% surcharge.

The court upheld the CPI indexation itself, but concluded that the additional surcharge clause was unfair and voidable in the specific circumstances of this case.

According to the court, relevant considerations included:

• insufficient transparency regarding the long-term financial consequences of the additional surcharge;
• the fact that an annual increase on top of CPI could lead to a substantial rent increase over time; and
• the landlord’s failure to sufficiently substantiate why increases beyond CPI were necessary.

General references to rising costs, sustainability investments or increased operating expenses were considered insufficient. The court required a more concrete and substantiated justification.

Smaller landlords may also be affected

An important aspect of the judgment is that strict consumer protection rules under Dutch and European law do not only apply to large real estate funds or institutional investors. Even landlords with a relatively small property portfolio may legally be regarded as professional parties.

Courts may consider factors such as:

• structural rental activities;
• rental activities pursued with an economic purpose;
• the investment nature of the properties; and
• recurring rental income.

Many private investors underestimate that Dutch residential tenancy agreements may therefore be assessed under the European Unfair Contract Terms Directive (93/13/EEC).

Why this judgment matters in practice

Many landlords in the Netherlands still rely on template agreements or older tenancy contracts that have been used for years without challenge. This judgment demonstrates that certain standard clauses may become legally vulnerable where:

• the financial impact on tenants is insufficiently clear;
• the additional surcharge cannot be properly justified; or
• the contractual balance shifts excessively in favour of the landlord.

This may affect:

• ongoing rental disputes;
• rent arrears;
• repayment claims;
• the enforceability of contractual clauses; and
• the procedural position of landlords.

It is also important to note that, under certain circumstances, the nullification of a clause may have retroactive effect.

Dutch residential tenancy law continues to evolve

It remains unclear whether this judgment will ultimately be upheld by the Supreme Court, as the cassation period is still pending. Further case law may provide additional guidance regarding surcharge clauses in Dutch residential tenancy agreements.

What is already clear, however, is that Dutch courts are increasingly scrutinising tenancy agreements against consumer protection standards. As a result, proper legal contract management is becoming increasingly important for landlords.

It is therefore advisable not to rely blindly on template agreements, but to have existing:

• tenancy agreements;
• rent increase clauses;
• general terms and conditions; and
• collection procedures;

regularly reviewed in light of current legislation and recent case law.

Questions about your Dutch tenancy agreements or rent increase clauses?

Would you like to assess whether your current tenancy agreements, rent increase clauses or general terms and conditions still comply with the latest Dutch case law developments? Or would you prefer to minimise the risk of future disputes regarding the enforceability of certain rental provisions?

Please feel free to contact us without obligation. We would be pleased to help you develop a legally sound and commercially practical approach tailored to your rental activities or property portfolio in the Netherlands.