Subletting (or subleasing) involves tenants (as opposed to landlords) renting out their accommodation to a subtenant. In such a situation, a tenant legally takes on the position of landlord relative to the subtenant (clarification of these terms can be found below).
Many students may wish to sublet their rooms in Maastricht, for example if they are going on an exchange or internship abroad. While this may seem like a convenient way to save yourself some money, subletting can be murky legal territory in the Netherlands, so you need to be quite careful. The general rule here is that subletting is only possible with the consent of the landlord.
Before we get down to the nitty-gritty, some terminology clarifications:
- The person who is in charge of the property – i.e. who collects the rent, signs rental agreements, takes care of repairs, etc. – is the landlord (note that this is not necessarily the same person as the owner of the property)
- The person who concludes the original rental contract with the landlord is the tenant or main tenant
- The person subletting from the main tenant is the subtenant or subletter
Depending on whether you are looking to sublet to or from someone (i.e. on whether you are the tenant or subtenant in the agreement), here are a few things you should consider:
You are subletting from someone
Your rights as a subtenant vary according to whether you are subletting an independent accommodation or not. Accommodation is considered to be ‘independent’ if it has:
- A private toilet
- A private kitchen
- A private bathroom with bath or shower
- Your own front door that you can lock. It’s important that the toilet, bathroom and kitchen are all behind this front door. Furthermore, the front door does not have to be on the street, but can be inside a house, for example
If the space you are subletting qualifies as independent, then you have tenancy (or rent) protection. This means that the landlord cannot simply cancel your (sub-)lease – unless the main tenant did not ask for the landlord’s permission to sublet. Furthermore, if the main tenant cancels their lease with the landlord, you become the new tenant, even if the landlord did not give permission to sublet the accommodation in the first place. In this case, you must send the landlord a letter (link in Dutch) informing them of your intention to remain as the new main tenant. However, if the landlord disagrees with keeping you as a tenant, they can follow a legal procedure to terminate your lease within six months.
If you wish to sublet the main tenant’s room, or even a room within the main tenant’s house, then this is not considered independent accommodation, and your protection as a subletter is more limited. Firstly, the landlord’s permission is needed in order to sublet non-independent accommodation; next, if the lease agreement between the landlord and main tenant terminates, you have no right to take over as the main tenant. You are thus obliged to leave the accommodation if:
- The main tenant cancels the lease
- The main tenant dies
- The lease between the landlord and main tenant is terminated by a court (this can happen if, for example, the main tenant sublets the accommodation without the landlord’s permission)
If you end up suffering damages (e.g. money loss) due to subletting non-independent accommodation from a tenant who did not obtain the landlord’s permission to do so, you might be able to claim compensation from the main tenant for your losses. This is by no means a simple process, so you’ll be much better off if you do your due diligence before you sublet, and ensure that subletting is allowed under the main tenant’s lease agreement.
You are subletting to someone
Whether or not it is possible to sublet your accommodation depends on your landlord; thus, this option is not available to everyone. It is illegal to sublet contrary to the wishes of the landlord, who may take you to court and terminate your rental contract if you do so without permission.
If you do get permission to sublet, then what (usually) happens is that your subletter will transfer the monthly rent to you, while you remain in charge of paying the rent to the landlord. It is definitely a good idea to draft a contract between you and your subletter, agreeing for them to transfer rent to you.
It’s very important to keep in mind that, in the eyes of the law, you (and not the subletter) are the official tenant. This means that you will still be responsible (and liable) for the payment of the rent and the condition and maintenance of the accommodation.
General info to keep in mind:
- The main tenant is responsible for the accommodation. This means that, for example, if the subtenant stops paying rent, the main tenant will be under an obligation to pay the rent to the landlord themselves.
- The rules for the deposit stay the same in case of subletting. This means that if the subtenant has to pay a deposit, this can only be withheld to cover any damages to the accommodation.
- It will be extremely difficult for the main tenant to move back into the subrented property before the end of the contract concluded with the subletter. It will also be difficult to evict a subtenant that does not wish to vacate the property even after the contract has ended. Both procedures would have to be carried out through a court.
- The points system (in Dutch) for calculating rent also applies to subtenancy agreements. This means that if the main tenant charges the subtenant a rental price exceeding that prescribed by the points system, the subtenant can claim the excess rent back through the Huurcommissie (rent tribunal).