On the basis of Dutch case law, a decline in footfall and turnover as a result of unforeseen circumstances, such as COVID-19 and the lockdown measures, was/is commonly considered (naar verkeersopvattingen) to be part of the entrepreneurial risk of a lessee and which do not constitute a defect (and therefore cannot lead to a claim for rent reduction).
Having said this, the COVID-19 situation is unprecedented in scope, impact and duration and affects the communis opinio (de verkeersopvattingen). One may argue that the concept of generally prevailing opinion (de verkeersopvatting) changes in such way that the impact of COVID-19 crisis and the consequences of the guidelines on social distancing and governmental lockdown measures, are (no longer) an entrepreneurial/commercial risk for lessees only. The abovementioned Dutch case law may no longer apply or not apply in full.
On the basis of the principles of reasonableness and fairness and the doctrine of unforeseen circumstances, the lessor may be obliged to offer a rent reduction of rental payments. The specific facts and circumstances of the case, such as the capacity of lessee, type of lease and asset play an important role in determining if and to what extent the lessee is entitled to a rent reduction.