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Lease agreement house: clause to the detriment of the tenant still valid

In rental law, tenants of dwellings are generally well protected. Even if a tenant has agreed to a clause in the general terms and conditions that is disadvantageous to him, there is a possibility by law to have this clause nullified afterwards if it is unreasonably onerous. In a recent judgment of the Court of Appeal of Arnhem-Leeuwarden, a clause that was to the detriment of the tenant was nevertheless accepted by the Court of Appeal.

Case study

The tenant in question, a lawyer, has agreed with his landlord on a rental agreement for one year with, among other things, the condition in the general provisions that interim termination is only possible with the intervention of the court.

“Unless the parties have agreed to this or otherwise, full or partial interim termination of the tenancy agreement and suspension of the obligations arising from the tenancy agreement shall only be possible with the intervention of the court”.

It soon turns out that the tenant is not satisfied with the rented accommodation. The most striking complaint is a faulty fire alarm system that goes off unnecessarily more than once and thus keeps the baby awake. After having complained a few times about the accommodation, the tenant announces that he wants to terminate the rental agreement extrajudicially. The landlord does not accept the dissolution and refers to the recorded clause. The tenant, on the other hand, states that this clause is unreasonably onerous.

Legislation

On the basis of Article 6:233 of the Dutch Civil Code, a clause in the general terms and conditions may be annulled:

– If the clause is unreasonably onerous for the other party (Section 6:233(a) of the Dutch Civil Code)

– If the other party has not had a reasonable opportunity to take note of the clause (Section 6:233(b) of the Dutch Civil Code)

In principle, a private tenant of a dwelling is regarded as a consumer. This is important now that the law with respect to consumers considers a number of clauses in general terms and conditions to be unreasonably onerous in advance. These are included in the so-called ‘black list’ (Section 6:236 of the Dutch Civil Code). For instance, Section 6:236 sub b of the DCC explicitly states that exclusion or limitation of the power of dissolution must be considered unreasonably onerous. So far, the legislation seems to point in the tenant’s favour.

Judgment of the Court of Appeal[1]

The Court of Appeal considered that in this case the tenant cannot be regarded as a consumer within the meaning of Section 6:236 of the Dutch Civil Code. However, the Court of Appeal ruled that in this case the clause can still be upheld because the clause does not exclude or limit an appeal for dissolution of the lease agreement. Therefore, it does not limit the possibility of dissolution, but only the manner in which it can be dissolved. In the opinion of the Court of Appeal such a restriction does not unreasonably burden the position of the consumer. According to the Court of Appeal, the contractual balance is maintained now that the lessor cannot dissolve the contract out of court either on the basis of the law (Section 7:231 of the Civil Code).

Comments

Although the Court of Appeal considers the fact that both parties cannot dissolve the agreement out of court does not lead to an infringement of the contractual balance, in our opinion there is something to be disputed. After all, the Court of Appeal seems to forget that it is generally assumed that consumers are the weaker party and that the legislation with, for example, Section 6:236 of the Dutch Civil Code tries to create a more balanced playing field.  If a lessor can subsequently set these regulations aside by means of a clause, there is no question of a contractual balance, but the consumer is still in the weaker position.

Perhaps the fact that the tenant was a lawyer played a role in this case. The lawyer, who was also specialised in private law, will probably not be considered a weaker party in advance. However, the Court of Appeal did not explicitly take this factor into account in its judgment. In our opinion there is certainly something to be said that this clause should have been considered unreasonably onerous.

Would you like to know more? Feel free to contact us.

Marius Rijntjes (rijntjes@m2advocaten.nl)

 

1] In a judgment of the District Court of Middelburg in 2009, the court arrived at a different judgment in the same type of case. In this judgment, the court ruled that on the basis of Section 6:267(1) of the Dutch Civil Code, the consumer in question is expressly entitled to an extrajudicial dissolution authority. A provision that actually excludes reliance on that article can therefore be regarded as a restriction within the meaning of Section 6:236(b) of the DCC and would therefore be unreasonably onerous.

Home Owners’Association (VVE): How to have a VvE decision annulled in time

If an individual VvE member cannot agree with a VvE decision, this person has the option of requesting the subdistrict court judge to have the decision in question annulled. Recently, the Supreme Court has provided more clarity about the period within which such a request must be made. In this blog we take a brief look at the legislation on this subject and discuss the Supreme Court ruling .

VvE decision annulment

Suppose your VvE has made a decision that you have major objections to. In that case, there are various reasons why you could have such a decision annulled (Section 2:15 of the Dutch Civil Code):

  • The decision is contrary to the legal or statutory rules of the making of the decision (eg meeting not convened correctly);
  • The decision is contrary to reasonableness and fairness;
  • The decision is contrary to the rules of procedure.

A request to have a VvE decision annulled must be submitted to the subdistrict court judge within one month after the applicant has taken cognizance or has been able to take cognizance of the decision (Article 5: 130 paragraph 2 of the Dutch Civil Code). With regard to a decision to amend the division deed, a different period of three months applies to claim the annulment of the relevant decision (5: 140 sub b BW). If a request is submitted too late, the sub-district court will declare the apartment owner inadmissible.

Moreover, a voidable decision should not be confused with a void decision. A decision may, for example, be void because it violates the deed of division, the law or the articles of association. Unlike a voidable decision, a void decision is deemed not to exist and therefore no annulment can be requested.

Case                                                         

The rules regarding the time limit for requesting annulment seem simple and unambiguous, but practice has proved more difficult. However, the Supreme Court recently issued a judgment providing the necessary tools for assessing issues related to this period.

In the case in question, the apartment owner had taken note of a VvE decision on the day, 10 December, that the VvE had announced the decision via its website and by sending an e-mail. The owner did not attend the meeting of November 23 where the decision was originally taken. The owner therefore stated that the period for requesting the annulment of the decision had only started to run on 10 December because he had only then taken note of the decision.

Not only the subdistrict court judge, but also the court of appeal ruled wrong with the owner in question. The court of appeal states that an owner / member of the VvE can generally be expected, if he cannot be present at the meeting, to find out as quickly as possible which decisions have been taken , so that the one-month period already starts one day after the meeting. However, the owner did not leave it at that and brought the case before the Supreme Court.

 Judgment of the Supreme Court

First of all, the Supreme Court states that the period starts as soon as the owner has reasonably been able to take cognizance of the decision. The circumstances of the case are decisive. The Supreme Court is of the opinion that if it is customary within the VvE to make decisions known through publication on a website, or through the distribution of an e-mail, that the owner could only reasonably have been informed of the decision from the moment when the announcement has taken place. This of course only applies if the owner has not attended the meeting himself. If it is not customary within the VvE to announce decisions among its members, it can be expected that information will be obtained about the decisions taken within one week after the meeting. In that case the period starts one day after the expiration of that week.

Explanation HR schematically shown:

Present at a meeting (or proxy) → 1 month after the meeting

Not present, no VvE announcement of decisions → 1 week to retrieve a decision, then 1 month 

Not present, but permanent VvE announcement of decisions → 1 month after the decision was announced

Conclusion

If we look at the literal text of article 5: 130 paragraph 2 “within one month after the applicant has become aware or has been able to take cognizance”, the last part of this sentence seems to imply that quite a bit can be demanded of the individual VvE member to find out decisions as quickly as possible. With the judgment of the Supreme Court this picture is nuanced, so that in some cases the period will only start later. Moreover, this does not affect the fact that if an owner finds out earlier in another way that the period starts from that moment (eg because another member had already informed the owner). In that case it is up to the VvE to prove that the relevant owner was already aware.

If you also disagree with a decision of your VvE or you want to defend yourself as a VvE against objections from individual members, you can contact M2 Advocaten.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)