Rent increase clauses for housing in the Netherlands: A year of landmark rulings and questions to the Court of Justice of the European Union

The first milestone was the Supreme Court ruling of December 2024. Until then, the courts were divided; some declared combined rent increase clauses entirely void, while others considered a modest surcharge permissible. The Supreme Court resolved that uncertainty. A combined clause must be split into an indexation component and a surcharge component, with each part tested separately against the European Directive on Unfair Terms. A 3% annual surcharge is, under that standard, not unfair in general. This appeared to provide a workable basis for day-to-day practice.

Assumptions that the ruling amounted to a blank cheque, however, proved to be a misreading. In April 2026, the Amsterdam Court of Appeal held that a 3% surcharge was nonetheless unfair in a specific case, because the landlord had failed to substantiate its necessity. The court made clear that a legitimate interest alone is not enough. The landlord must demonstrate concretely why the surcharge is required for the specific property in question. The cumulative effect was decisive: a starting rent of EUR 1,500 in 2019 had grown to over EUR 2,000 by 2024 through combined annual increases. The court considered that long-term effect unreasonably burdensome.

The third and most recent development is the announcement by the Amsterdam subdistrict court that it intends to refer questions to the Court of Justice of the European Union (CJEU). In proceedings between 19 tenants and a housing association, the central issue is whether the entire rent increase clause must be set aside when indexation and surcharge are not sufficiently distinguished. The answer could have consequences for the ruling of the Supreme Court. Six preliminary questions have been drafted, and the parties may still comment on their formulation. A ruling from the CJEU is expected within 15 to 18 months, and may result in significant further changes to current practice.

The message for advisers and portfolio managers is clear: review existing agreements for the separation of both components, ensure that new contracts include a concrete and documented justification for any surcharge, and follow the European proceedings closely. The outcome will not go unnoticed beyond the Netherlands.

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Joost Donkersloot works at TK in Leiden as a senior attorney at law, specialising in real estate. He is also a member of the GGI Real Estate Practice Group. Within real estate, he focuses on rent law and apartment rights. In addition, he specialises in the leisure business. He is a member of TK DACH, the firm’s German desk. 

Yvo Rampersad is a partner at TK specialising in civil real estate and commercial contracts. He advises and litigates for companies such as construction companies, schools, manufacturers and real estate investors. He regularly acts in disputes between entrepreneurs, both in civil courts and in arbitration.