HW Legal
Landlords often want to make sure that the tenant will vacate the flat when the tenancy ends. That is why it was common practice, when signing a tenancy agreement, to also sign an agreement with consent to enforceability before a notary: if the tenant does not vacate the flat after the tenancy ends, the landlord can have it cleared through enforcement.
The advantages of notarial deeds
Landlords often want to make sure that the tenant will vacate the flat when the tenancy ends. A common practice, when signing a tenancy agreement, is to also sign an agreement with consent to enforceability before a notary.
What does this mean? At the parties' request, the notary draws up a notarial deed recording an agreement in which the tenant undertakes to satisfy the landlord's claim arising from the tenancy agreement. The tenant undertakes to vacate the flat by a certain date (when the tenancy ends), and consents to enforcement being ordered and carried out on the basis of this notarial deed if they fail to perform their obligation properly and on time. In other words: the tenant agrees that if they do not vacate the flat after the tenancy ends, the landlord can have it cleared through enforcement.
The advantage of such an agreement (compared with a plain tenancy agreement without the clause) is that it is directly enforceable. The landlord does not have to file an action to have the property cleared and wait for the court's decision, because the agreement itself is an enforceable title, which significantly shortens and simplifies the whole process.
Of course, ideally the tenant vacates the flat voluntarily when the tenancy ends. The notarial deed is therefore only a safeguard the landlord can fall back on if problems arise.
The change in 2020
In 2020, the Supreme Court put a stop to this practice. It ruled that a notarial deed with consent to enforceability cannot be an enforceable title for enforcing the obligation to vacate a property. This verdict caused complications for landlords. If a tenant did not want to move out of their flat after the tenancy ended, the landlord had to sue to have it vacated. After all, a landlord can't simply walk into the flat and clear out the tenant's belongings, as this could amount to violating the freedom of the home.
The reassessment in 2024
Now, in April 2024, the Supreme Court has revisited this view and ruled that a notarial deed can serve to secure a former tenant's obligation to vacate the flat when the tenancy ends. This is a step in the right direction and brings landlords greater certainty and efficiency.
A brief explanation of the Supreme Court's decision
In a resolution of its Grand Chamber (NS 31 Cdo 225/2024), the Supreme Court reached the following new conclusion. A notarial deed with consent to enforceability, intended to enforce the obligation to vacate a property, is a notarial deed under Section 71b of the Notarial Code. It can therefore be an enforceable title. The court's starting point was that handing a thing over for another person to use (whether as a loan at will, a loan for use, a lease, a usufructuary lease, and so on) is one of the types of obligation governed by the Civil Code. Neither in the courts' practice nor in legal theory is there any doubt that the mutual rights and obligations include the duty of the person who used the thing to return it, once the agreed obligation ends, to the person who handed it over to them.
What this means in practice
This new interpretation means that landlords can effectively secure the clearing of their property without having to go through lengthy court proceedings. It brings not only greater legal certainty but also a quicker and less costly way of resolving any disputes with tenants. In short, notarial deeds attached to tenancy agreements save landlords time and money.
We can help you set up your tenancy arrangements just the way you want them, so that everything is legally sound, easy to use, and clear. If you need help, get in touch with us.