Dutch Supreme Court confirms that interest during the lease notice period qualifies as an estate claim

Dutch insolvency law distinguishes between three main categories of creditor claims: 

• Non-verifiable claims 
• Verifiable claims 
• Estate claims

Creditors with non-verifiable claims seldom receive payment on their claims. 

Estate claims however are immediately and directly enforceable against the bankrupt estate and are paid before ordinary unsecured verifiable claims. Creditors with estate claims are more likely to receive payment on their claims.

Since April 2013, the Dutch Supreme Court has held that estate claims arise in three cases:  

• Under a statutory provision (for example where employment contracts are terminated by the trustee).
• Where the bankruptcy trustee has incurred debts in their role as trustee (for example costs for a forensic accountant engaged by the trustee).
• Where the trustee has taken actions contrary to their obligations or commitments in their formal capacity as bankruptcy trustee.

Although these criteria seem clear, questions remain. When the debtor is a tenant and the trustee terminates the lease agreement it is clear that the rent over the notice period is an estate claim (art. 39 Dutch Bankruptcy Act). But what about interest over the notice period? In a recent case, the Supreme Court held that both statutory interest and contractual default interest should be regarded as estate claims.

Key takeaway

Quite often landlords do not realise that they can also submit interest claims over the notice period as an estate claim, but now the Supreme Court has provided clarity - landlords can claim both rent and interest over the notice period as an estate claim.