Is your flex contract a lease? Why the answer is more often uncertain than you'd like

Flex operators often call their contracts a "membership agreement", "service agreement" or "usage agreement". That's no coincidence: many operators deliberately give their contracts a name other than "lease", precisely to fall outside Dutch tenancy law. Whether that actually works doesn't depend on the name on the contract, but on its actual substance.

The honest answer upfront: a neat "yes, this is a lease" or "no, this is a service arrangement" often doesn't exist. Even judges have not always reached a definitive conclusion in a specific case. This article explains which test is applied, why that test can sometimes remain undecided, and, most importantly, what you can do with that as a tenant, regardless of how the qualification ultimately turns out. For the broader practical points to check in a flexible office contract, see our checklist for reviewing a flexible office contract.

What legally makes an agreement a lease?

The statutory definition

Under article 7:201(1) of the Dutch Civil Code (Burgerlijk Wetboek, BW), a lease is an agreement whereby the landlord undertakes to give the tenant the use of a property or part of it, and the tenant undertakes to provide consideration in return. In principle, any agreement that meets that definition is a lease, regardless of what the parties choose to call it.

The name of the contract is not decisive

This is where many operators (and tenants) go wrong. For the legal assessment, it doesn't matter what name the parties give their agreement. Whether a contract is called a "membership", "service agreement" or "usage agreement", if its content meets the statutory elements of a lease, it is legally a lease, with all the consequences that come with it. That doesn't mean the naming is meaningless, though: it does give an indication of what the parties had in mind when entering into the agreement, and that in turn plays a role in the final assessment.

The decisive test: is the space 'sufficiently determinable'?

Under article 6:227 BW, the property to which the use relates must be sufficiently determinable, and this is often exactly where flex concepts run into difficulty.

A fixed office room or dedicated desk

If the flex contract relates to the use, for a fee, of a clearly designated office space, there is a sufficiently determinable property, and the agreement qualifies as a lease. The same applies if you have the right to use one specific, fixed workspace within a shared space.

Hot desks or a rotating workspace

With a "true" flex desk, where you're entitled to use a workspace within a shared space but that workspace can vary, no single fixed spot is guaranteed and the allocation changes. Does that mean there's no longer a "property" within the meaning of article 7:201(1) BW, and therefore no lease? Views differ on this in case law and legal literature.

Part of the legal advisory field even warns operators that rotating desks on a daily basis offers no guarantee that an agreement will be qualified as a service arrangement: even with rotating flex desks offering varying facilities, a lease may still be found, because what matters isn't the fixed spot itself but whether a space within a particular building is reserved and used. In other words, there's no watertight contractual formula an operator can use to rule out a lease qualification. That's exactly why you can't work this out from the name or form of the contract alone.

What the case law says

Case law in this area is scarce, and the two leading Amsterdam cases show just how differently this can turn out.

2010: a service agreement turns out to be a lease after all

In a case before the Amsterdam District Court (Rechtbank Amsterdam) of 15 July 2010 (case number CV 09-45426), the subdistrict court judge (kantonrechter) ruled that a lease existed, despite the parties having signed a service agreement for the use of two workspaces. The judge held at the outset that the name the parties had given the agreement was irrelevant, and concluded that the service agreement met the statutory requirements for a lease: providing the use of a property or part of it, in exchange for consideration. The decisive factor was that the two workspaces were located at a clearly designated location (the provider's office); the fact that the user was assigned a different specific workspace each day did not change this. This ruling, incidentally, applies only to this specific case and cannot be treated as a general rule for the qualification of flex desks.

2017: the WeWork case, and why it gave no answer

In summary proceedings before the Amsterdam District Court of 31 August 2017 (ECLI:NL:RBAMS:2017:6431), an IT entrepreneur with a dedicated desk at WeWork argued that this was an ordinary lease of office space, entitling him to eviction protection under article 7:230a BW. WeWork disputed this: it argued that while there was indeed a lease, it was a lease of a desk (a movable item), not of office space within the meaning of article 7:230a BW.

The court ruled that the agreement contained elements of a lease, but that this didn't automatically mean article 7:230a BW applied. At the same time, the court also didn't find it plausible that this was simply a lease of a movable item, as WeWork argued. The court qualified the agreement as a mixed agreement, combining both lease and service elements. Because summary proceedings aren't suited to a definitive ruling on the type of agreement, the judge ordered WeWork to continue the agreement for a further two months, giving the user the opportunity to start full proceedings in which the matter would be assessed definitively.

And then? The user did exactly that: his request for tenancy protection was heard in January 2018. But instead of a substantive judgment, the parties reached a settlement at the hearing. The agreement was terminated by mutual consent as of 1 June 2018. The fundamental question of whether this particular type of flex-desk membership qualifies as a lease of office space has therefore never been answered by a court.

The lesson from this may well matter more than either ruling on its own: even a party willing to go to the trouble of having this legally established often doesn't get a clear answer. Settling is usually more attractive for both parties than a long, costly procedure to answer a point of principle. That means it's wise, as a tenant, to nail this down contractually in advance, rather than counting on a favourable outcome after the fact.

Why this qualification matters

Eviction protection

If an agreement is qualified as a lease, the tenant enjoys rights that cannot be contractually overridden, including eviction protection if the landlord terminates the agreement. In exceptional cases, this protection can extend up to a maximum of three years after the termination date, although such long periods are rare and protection periods of a few months are more common. This protection does not apply under a service agreement.

Liability for defects

If the agreement qualifies as a lease, the user benefits from tenancy protection, including the landlord's statutory liability for defects in the leased property (article 7:204 et seq. BW). This entitlement is generally absent in a service arrangement.

Practical consequences

In addition, the postal address of a flex workspace cannot always be registered as the tenant's official Chamber of Commerce (KvK) business address, and certain standard provisions from model lease contracts (such as arrangements for handover, division of maintenance responsibilities, and service charges) often don't apply one-to-one to flex workspaces. These kinds of practical matters are often overlooked until they become an actual issue.

What can you do with this as a tenant?

Because the qualification question itself can remain uncertain, even for a court, the most practical strategy isn't to try to answer that question with certainty in advance, but to strengthen your position contractually regardless of the outcome.

Ask your operator the right questions

Exactly which space are you allocated, and is that stated concretely and identifiably in the contract? A vague or general description of "a workspace" is a different starting point from an explicitly named office room or fixed desk, and affects how any future qualification would turn out.

Record explicit agreements, independent of the qualification question

Don't rely on the protection the law may grant you; instead, negotiate directly on the points that matter most to your organisation: a realistic notice period, clarity on what happens in the event of a dispute, and clear agreements on the period following any termination. This gives you certainty that doesn't depend on how a court might one day qualify the agreement.

Seek advice if you're unsure

For a larger team, a longer term, or a significant financial commitment, it's advisable to have a lawyer review the contract before you sign. Not necessarily to get a definitive answer to the qualification question, since that answer sometimes simply doesn't exist, but to strengthen the contractual protection that doesn't depend on that qualification.

A note for readers outside the Netherlands: this qualification question is specific to Dutch tenancy law. Other jurisdictions grapple with a similar problem, but frame it differently: England and Wales, for instance, ask whether an occupier has "exclusive possession" to distinguish a lease from a licence to occupy, while US states typically apply their own variants of a similar test. If you're evaluating a flex contract governed by a different jurisdiction's law, the Dutch test described here won't apply directly, and you should have the agreement reviewed under the relevant local law instead.

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