What is subrogation?
Subrogation means that the new owner of a company can take the place of the previous owner in the rental or lease contract, when there is a company takeover. The contract will remain valid, and the same conditions and agreements apply. For example, agreements on the rental price and the term.
Subrogation is a legally established practice, laid down in the rules and regulations on renting company premises. In Dutch, it is called indeplaatsstelling.
Only for small-firm businesses accommodation
Subrogation can only be used if you buy or sell a company with a small-form business accommodation (middenstandsbedrijfsruimte). Or, in other words, a retail space, which is open to the public. You sell your product or service directly to the customer. Examples are shops, garages, or hairdressers. Special rental rules apply to small-form business accommodations.
Part of the value of a small-firm business accommodation is its location. The seller has invested in the space and in the reputation. Subrogation helps to preserve that value. And the buyer knows what they are dealing with from the start.
Other business accommodation
Is the company accommodation not a middenstandsruimte? Then subrogation is not an option. The landlord decides whether they want to draw up a new contract or continue the existing one.
When can you use subrogation?
To use subrogation, you must meet three conditions:
- There must be a company takeover. The new business owner has to continue a similar activity in the business accommodation. If the new owner wants to start a different type of company in the premises, they cannot use subrogation.
- The new owner must be able to prove that they can honour the rental contract. For example, with a bank guarantee. They must also be able to prove they are able to manage the business.
- The previous owner must have a good reason for selling the business: a zwaarwegend belang. For example, because they are retiring, or because the sales price is exceptionally high.
Apply for subrogation in time
Do you want to use subrogation? Make the necessary arrangements during the company takeover process. The seller (the tenant) must apply to the landlord or lessor. For one thing, it will give you clarity on your leasing or rental arrangements during the sale. If you buy or sell the company before you have settled this, you may not be able to apply for subrogation anymore.
Landlord does not cooperate
If the landlord does not want to cooperate, the tenant can apply for subrogation at court. The court will assess whether you meet all the conditions.
Rent protection and subrogation
If you rent a small-firm business accommodation, you are usually entitled to ten years' rent protection. You are also entitled to rent price protection. If you opt for subrogation, the previous owner's contract will continue. This means you are only entitled to the rent protection and rent price protection for the term left under the existing contract. Consider this before you make your choice.