Postponement of eviction is not a tenancy agreement: Supreme Court confirms qualification criteria

Temporary right to remain after the end of a tenancy: lease or not?

In practice, it is not uncommon: a tenant dies, and the remaining occupants — children, a partner, a housemate — are allowed by the landlord to stay in the property temporarily. Sometimes this is arranged in a settlement agreement. But does such an agreement then constitute a tenancy, with all the tenant protection that entails?

The Dutch Supreme Court gave a clear answer on 31 January 2025: not necessarily (ECLI:NL:HR:2025:167). The ruling confirms the legal framework for classifying such agreements and gives landlords — provided the agreement is carefully drafted — more room to arrange temporary situations without automatically triggering tenancy protection.

The facts: children remain in the home after their mother's death

Portaal, a housing association, rented a home to a woman who died in August 2019. Her two adult children (born in 1979 and 1987) were living with her at the time. They had no tenancy contract in their own names and were not recognised as co-tenants.

Portaal offered the children a settlement agreement: they could temporarily remain in the property, paying a usage fee equal to the rent, until they found alternative accommodation. The agreement explicitly stated:

• The children are not tenants and have no claim to tenant protection under Article 7:268(2) of the Dutch Civil Code.
• The arrangement is temporary, ending no later than 31 March 2020.
• Further extension is not possible.

The agreement was extended once, until 30 September 2020. After that, the children refused to leave and claimed they were entitled to tenancy protection.

Portaal sought an eviction order. The cantonal court sided with the children: there was a tenancy agreement. The Arnhem-Leeuwarden Court of Appeal disagreed and ordered the children to vacate. The Supreme Court upheld the Court of Appeal.

The legal framework: interpretation and classification

The Supreme Court confirmed a two-step process for these agreements:

Step 1: Interpretation (Haviltex)

First, it must be established what rights and obligations the parties actually agreed to. This is done using the Haviltex standard: what could each party reasonably expect in the circumstances?

Step 2: Classification

The established rights and obligations are then tested against the statutory definition of a tenancy agreement (Article 7:201 of the Dutch Civil Code). If they satisfy that definition, there is in principle a tenancy.

But — and this is the core of the ruling — even if an agreement formally resembles a tenancy, the overall legal relationship may bear too little resemblance to tenancy to justify applying the protective tenancy regime. This follows from the Timeshare ruling (Supreme Court, 11 February 2011, ECLI:NL:HR:2011:BO9673).

The question is not only whether the agreement contains elements of a tenancy, but whether the agreement as a whole, considering what the parties had in mind when concluding it, can be characterised as a tenancy.

The judgment: no tenancy agreement

The Supreme Court held that the settlement agreement could not be characterised as a tenancy. Three considerations were decisive:

1. The situation the parties were regulating: following the death of the tenant, where the landlord could have enforced eviction but voluntarily chose not to. The landlord was doing the occupants a favour.

2. Legal protection was already available: the children could have invoked Article 7:268(2) of the Dutch Civil Code (continuation of tenancy by co-residents). They already had a legal safety net — the settlement agreement merely gave them extra time.

3. The purpose of the agreement: exclusively intended as a temporary bridging arrangement, not to establish a new tenancy relationship.

Had the Supreme Court ruled otherwise, the children would have acquired tenancy protection through the settlement agreement — which would have been contrary to the intention of both parties and the structure of the law.

What does this mean in practice?

For landlords and housing associations

• Landlords have more room to grant temporary postponement of eviction without automatically creating a new tenancy relationship.
• The ruling does not apply exclusively to situations following the death of a tenant — the Supreme Court leaves open broader application to comparable temporary arrangements.
• Careful contract drafting is essential: the agreement should explicitly state (a) that the occupant is not a tenant, (b) the circumstances for which the temporary arrangement is being made, (c) its duration, and (d) that extension is not automatic.
• Also describe what legal position the occupant already had (e.g. the possibility of Article 7:268) and why the agreement does not create new tenancy rights.

For occupants and tenants

• A temporary tolerance arrangement after the end of a tenancy is not the same as a tenancy agreement. Anyone who believes they are entitled to tenant protection should establish that through the courts promptly — not after the tolerance period has expired.
• The Supreme Court emphasises that the occupants' legal position was protected through Article 7:268, but they had chosen not to exercise that right.

For legal advisers and notaries

• Always advise landlords seeking to make temporary arrangements on the requirements for a valid settlement agreement that falls outside the tenancy regime.
• Test the agreement against both the Haviltex standard and the Timeshare criterion — both steps are necessary for a robust contractual basis.

Conclusion

The Supreme Court makes clear that a temporary tolerance arrangement after the end of a tenancy does not automatically lead to tenant protection, provided the circumstances and the purpose of the agreement are clearly recorded. Landlords wishing to grant temporary postponement of eviction after the death of a tenant or the end of a tenancy can do so — but must ensure the agreement is legally watertight. A brief legal review beforehand prevents lengthy proceedings afterwards.

Ruling

This blog post is based on ECLI:NL:HR:2025:167, judgment of the Dutch Supreme Court of 31 January 2025.

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