The Default Rule: A Personal and Non-Transferable Agreement
In the Dutch legal system, a residential rental agreement (huurovereenkomst voor woonruimte) is fundamentally a personal contract between a specific landlord and a specific tenant. The default principle is that a lease is non-transferable. A tenant cannot simply hand over their lease to a friend, family member, or stranger and walk away. The landlord entered into an agreement based on the screening and financial stability of the original tenant. Allowing a unilateral transfer would completely undermine this. However, Dutch law does provide for two specific, highly regulated mechanisms through which a third party can come to occupy the property: subletting (onderhuur) and lease substitution (indeplaatsstelling), both of which are strictly controlled and often forbidden by the rental contract itself.
Subletting (Onderhuur): A Common Source of Conflict
Subletting is the practice of a main tenant (hoofdhuurder) renting out the property, or a part of it, to a sub-tenant (onderhuurder). This is a frequent point of contention. The rules differ based on what is being sublet:
- Subletting the Entire Property: This is almost universally forbidden without the landlord's explicit, written permission. The rental agreement will contain a clear clause prohibiting this. A landlord has very little incentive to agree, as it means their property is being occupied by a person they have not screened or approved. Illegal subletting, including unauthorized short-term rentals via platforms like Airbnb, is a serious breach of contract and one of the most common reasons for immediate eviction proceedings (
ontruiming) and significant financial penalties.
- Subletting Part of the Property (e.g., a Room): If the main tenant continues to live in the property as their primary residence, the law offers slightly more flexibility. While the rental contract may still forbid it, a tenant subletting a room in their own home has a slightly stronger position. The sub-tenant in this specific situation also gains some legal protections. However, if the main tenant's lease is terminated, the sub-tenant's right to stay also ends.
The skeptical tenant should assume that any form of subletting is prohibited unless they receive clear, written consent from their landlord. Ignoring this is one of the quickest ways to end up in court.
Lease Substitution (Indeplaatsstelling): A Rarity in Residential Leases
Lease substitution is a more formal and comprehensive process than subletting. It doesn't create a secondary lease; it involves completely replacing the original tenant with a new one on the existing contract. The new tenant takes over all the rights and obligations of the departing tenant. While this mechanism is well-established for commercial leases (where a new business owner might take over the lease of a shop), it is extremely rare and very difficult to enforce for residential properties. A residential landlord cannot be forced to accept a new tenant they do not want. This would require the full and active cooperation of the landlord, including a new screening process for the proposed new tenant. For all practical purposes, tenants should consider their residential lease to be non-substitutable.
