As we reported in April, 2020, in The Netherlands for most civil contracts the temporary lockdown against the Covid pandemic will not be considered as force majeure, but as an unforeseen circumstance that may give rise to a review of reciprocal undertakings. No legislation was introduced in this field, but recently the Supreme Court of The Netherlands has set a clear rule for such review, in those cases where a tenant for his business is dependent on customers entering his rented premises.
In that case the tenant is entitled to a reduction of the rent, if the governmental emergency assistance scheme does not cover the entire rent, for each separate payment period of the rent. The part of the rent that is not (deemed to be) compensated by State aid nor by the remaining turnover is considered as an unforeseen loss, that has to be borne by the tenant and the landlord equally. In other words: if the State aid does not apply and during a specific rental period the retailer following a lockdown suffered a loss of sales in comparison with the analogous period before the pandemic, the landlord has to accept a reduction of the rent by half the percentage of the loss of turnover of the tenant. In figures: a loss of turnover of 80% leads to a 40% reduction of the rent insofar as the rent was not compensated by State aid.
This clear rule applies to all rented shops, restaurants, bars, hotels and campings that in normal circumstances are open to the public. The rule is not confined to a total lockdown; it applies as well to periods in which other government measures had the effect of restricting the use of the premises.