Mutual Consent to Terminate Tenancy: jointly ending the tenancy agreement
Mutual consent is a way in which both the tenant and the landlord can terminate a tenancy agreement without a formal notice of termination. Instead of having to wait for a notice period, both parties can agree to an immediate termination of the tenancy. This can be convenient if, for example, the tenant has found a new home or the landlord wants to use the property themselves. In this article, we explain how mutual consent works, what the legal basis is and which steps you must follow.
What is mutual consent?
With mutual consent, the tenant and the landlord make an agreement to terminate the tenancy agreement without a formal notice being required. This means that both parties agree that the agreement does not need to continue. It is a voluntary agreement and no reason is needed for terminating the tenancy, unlike with a notice of termination (for example due to force majeure or fault of one of the parties).
Mutual consent is not legally binding for either party. It is an informative agreement that can be recorded either verbally or in writing. However, for legal certainty, it is always advisable to record the agreement in writing.
Legal basis of mutual consent
The possibility to terminate a tenancy agreement by mutual consent is not explicitly laid down in the Housing Tenancy Act (Whw) or the Civil Code. It is a legal principle that follows from contractual freedom (articles 6:227 and 6:228 of the Dutch Civil Code). This means that parties are in principle free to make agreements that are not contrary to the law.
However, the agreement must not conflict with other statutory provisions, such as:
- The notice rules from the Whw (for example, the minimum notice period of 1 month for a residential tenancy agreement).
- The protection of the tenant against arbitrary termination (articles 7:270 et seq. Whw).
- The requirements for a valid notice, such as providing a notice document (article 7:273 Whw).
Although the agreement is voluntary, if, for example, the tenant is in the protection period (the first 5 years for a residential tenancy agreement), the landlord cannot terminate unilaterally. Even in that case, mutual consent can provide a solution, provided both parties agree.
Practical examples of mutual consent
Mutual consent can play a role in various situations. Here are some examples:
| Situation | Tenant | Landlord | Solution via mutual consent |
|---|---|---|---|
| Tenant finds a new home | Does not want to wait for the notice period | Sees no objection to quick termination | Parties agree on immediate termination without notice period |
| Landlord wants to use the property themselves | Agrees to quick termination | Does not want to serve formal notice | Parties agree that the tenancy ends immediately |
| Tenant and landlord want to avoid conflict | Finds the tenancy duration too long | Sees no benefit in a long tenancy agreement | Agree to terminate the tenancy as per agreement |
Rights and obligations with mutual consent
With mutual consent, the following rights and obligations apply to both the tenant and the landlord:
Rights of the tenant
- No need to wait for notice period: The tenant does not have to wait for the statutory notice period (e.g. 1 month) if both parties agree.
- No reason needs to be given: With mutual consent, no motivation is required, unlike a formal notice.
- Written confirmation: The tenant can be assured of a clear agreement on the termination, providing legal certainty.
Obligations of the tenant
- Agreement