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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.

Sale of property: cooling-off period for the seller

When you are selling a house, a private buyer is given a three-day cooling-off period under the law. It is increasingly common for sellers to stipulate a cooling-off period. Is this allowed? In this blog we look at the rules surrounding the cooling-off period and discuss a recent judgment of the District Court of Overijssel regarding the cooling-off period for the seller. Finally, we look at the consequences of this ruling.

Three days cooling-off period for private buyers

With the housing market under constant tension, there is usually a lot of pressure on potential buyers to quickly decide whether to buy or not. This can of course lead to hasty decisions. Fortunately, private buyers are somewhat protected by law. For example, private buyers are given a three-day cooling-off period after they have agreed to buy a house (Article 7:2 paragraph 2 of the Dutch Civil Code). Even when the papers have been signed, the private buyer still has three days to dissolve the purchase agreement without giving reasons.

Reflection period for sellers?

This statutory cooling-off period only applies to private buyers. As long as the sales contract has not been signed, the (private) seller has the possibility to renounce the sale, but as soon as it has been signed he is in principle bound by the sale. However, a seller does have the possibility to include a clause in the sales contract that says that the seller also gets a cooling-off period. An obvious reason for the seller to include such a clause is that in the current housing market the seller regularly receives a higher bid later. As long as the buyer agrees to such a clause, it is allowed.

Case

Earlier this year, the District Court of Overijssel ruled on a case in which the seller had stipulated a three-day cooling-off period equal to the protection for buyers. In the end, the seller used this period to go into business with a third party and thus dissolved the purchase agreement with the first buyer. The buyer claimed that the seller had abused the clause. According to the buyer, this clause only served to protect the seller against a hasty decision, and not as an instrument to obtain a higher bid from a third party. However, the court ruled that the parties had agreed that the seller could renounce the sale just like the buyer without giving reasons. Although the court questions whether negotiating with a third party after the conclusion of a sales contract is decent, it does not see sufficient reason to hold the seller to the sales contract in this case. This would have been different if the seller had used the offer of a new potential buyer to make the first buyer pay a higher purchase price.

Conclusion

The outcome of the ruling is that selling parties can certainly try to negotiate a cooling-off period for themselves now that this will increase the chance of obtaining the highest possible price. For buyers, on the other hand, this possibility obviously entails the risk that the house can be sold to someone else at the last minute, so that the cooling-off period can mean a number of nerve-wracking days. A buyer is usually wise not to agree to such a clause. Nevertheless, the housing market in some regions in the Netherlands is still so tense that buyers may feel compelled to agree to such a clause. In that case, it may be wise to try to draw up additional dissolution conditions in order to limit the risks to some extent.

Do you have questions about the cooling-off period or are you looking for advice on drawing up a sales contract or additional conditions? If so, please feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes (rijntjes@m2advocaten.nl)

 

Purchase of property: what if it stinks?

You finally bought your dream house, but soon the house turns out to be more of a nightmare. It turns out to stink of fish and frying smells in the new house. You want to undo the purchase as soon as possible. What does the judge think of this case?

Case

A seller puts his house for sale on Funda. The house is located above a fish shop, but the seller puts the following text in the advertisement “absolutely no trouble from the shop below”.  Smell nuisance from the underlying shop seems to be out of the question. An interested potential buyer decides to visit the house and indeed does not smell any fish smell or other unpleasant smells during the visit. Then some time later, a sales agreement is concluded between the seller and the buyer. However, when the buyer enters his new home he appears to notice a penetrating smell of fish and frying.

The buyer then asks the seller to take measures so that the buyer no longer experiences the serious odour nuisance. Initially the seller promises to cooperate, but if he fails to do so, the buyer’s patience quickly runs out. He calls in a company to look into what causes the odour nuisance. In the end, the investigation shows that the fans of the fish shop are responsible for moving the smell of fish to the buyer’s home. The buyer then decides that he wants to cancel the purchase and institutes summary proceedings (urgent procedure).

Judgement of the court

In principle, a buyer of a house can dissolve the purchase agreement if the house does not comply with the agreement.  If a house does not comply with the agreement, this is also called non-conformity. What a seller has communicated about the property should also be taken into account. In short, if the seller has made it clear at the time of the sale that the house stank, the buyer cannot later dissolve the purchase agreement on the grounds of that smell. It follows from the law (Article 7:17 of the Dutch Civil Code) that the home possesses the properties required for normal use. This concept of normal use is, for example, also included in the NVM deed of sale.

In this case, the court ruled that it was plausible that there was some stench nuisance, but also that the stench was somewhat to be expected because the house was located above a fish shop. This was despite the fact that the seller had stated in the advertisement that there would be absolutely no nuisance. According to the court, it had not been sufficiently demonstrated that the stench was actually so serious that it impeded normal use of the house. Nor was it sufficiently clear that there were no ways to eliminate the stench. In short, the judge ’s opinion was  that the stench did not justify the dissolution of the purchase agreement.

Conclusion

In itself, it is remarkable that the judge ignored the fact that the seller had advertised with “absolutely no nuisance from the shop below”. In my opinion, it can certainly be defended that the seller actually obliged himself with this statement to deliver a home without any (odor) nuisance from the fish shop underneath. This would be different if, for example, the buyer had been inconvenienced by the approach of customers. From an objective point of view, the seller does not necessarily have to experience such a nuisance and it is also up to the buyer to ascertain the situation to some extent. This case definitely shows that a judge will not allow a quick dissolution of a sales contract. As a buyer, it is always important to investigate extra carefully if the circumstances give (any) reason to do so and not to accept the seller’s words too quickly.

Have you bought a property that does not meet your expectations or are you, as a seller, dealing with a dissatisfied buyer? Please feel free to contact M2 Advocaten.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)

Penalty clauses in housing rental contract

In 2013, a ruling of the European Court of Justice revealed that many penalty clauses in leases with private tenants are not valid because they are considered unreasonable under European law. However, the District Court of Amsterdam recently issued a nuanced judgment, ruling that if the landlord is also a private individual, there is not necessarily a disrupted balance of power, as a result of which the landlord can still claim the fine.  

ROZ model and penalty provisions

When a house is rented out, usually a written rental agreement is drawn up. Often landlords use a standard Council for Real Estate Affairs (Raad voor Onroerende zaken, abbreviated: ROZ) model drawn up by specialists. Not surprisingly, many landlords assume that they have established a solid contract with this document. The ROZ-model also includes various penalty provisions to ensure that the tenant meets his obligations. But it was precisely these penalty provisions that proved to be far from ideal.

Unfair terms directive

In 2013, the European Court of Justice issued a judgment[1] which showed that the Unfair Terms Directive applied to rental contracts for residential premises. According to the Court, the aim of the Unfair Terms Directive is to provide consumers with effective protection against abuse by a commercial party of its dominant position.

Penalty clauses such as those in the ROZ-model were often found to be unfair according to this standard. An important consequence of this was also that the penalty clause turned out to be completely invalid, which meant that moderation was no longer an option. In short, the user of the ROZ-model could suddenly no longer claim a fine, even though the tenant in question was clearly at fault.

Judgment of the District Court of Amsterdam

The Directive thus aims to protect consumers against abuse by companies that are their landlord. But what if the landlord is a private individual? Until recently, this situation was uncertain, but recently the Court of Amsterdam ruled on this matter.[2] In this particular case, the landlord had only one property available for letting and it was apparently the first time that the landlord rented out housing. The court ruled that under these circumstances the lessor was entitled to claim the fine because there was no question of a disrupted balance of power.

Although the judgment as described above can be interpreted as a relaxation with regard to penalty clauses, our opinion is that in this case there were very special circumstances. We consider the scope for a broader application to be small.  For the majority of landlords, it is therefore particularly important to ensure that the penalty clauses comply with what is considered reasonable. For example, the penalty amount should not be unreasonably high, should be capped and should preferably be agreed in the lease itself and not in the general provisions[3].

Incidentally, the Council for Real Estate Affairs has meanwhile adopted a new ROZ-model for home rentals that has been adapted with due observance of current case law. If you would like a tailor-made rental agreement and/or would like to have checked whether your penalty provisions are valid, please contact M2 Advocaten.

[1] HvJ EU 30 mei 2013, EECLI:EU:C:2013:341

[2] Rb. Amsterdam 22 januari 2020, ECLI:NL:RBAMS:2020:291

[3] Hof Den Bosch 24 september 2013, ECLI:NL:GHSHE:2013:4346

 

empty house

Fine for vacancy in Amsterdam, how does it work?

It has been possible for some time that owners of office buildings in Amsterdam were fined if they did not report vacancy on time, but since December 2016 it is also possible that owners of houses are fined if they do not report vacancy on time. With this fine, the municipality of Amsterdam wants to prevent further vacancy of houses in the city. The first fine was therefore imposed in September 2017 to combat the vacancy of homes. If we may believe alderman Ivens (Housing), more will follow. How does it work?

What is vacancy?

According to the Leegstandwet (Empty Vacancy Act), vacancy is when a house, office building or part of it is not actually used by a tenant or other user.  There is also vacancy if the use has the apparent intent to prejudice the operation of the law or the vacancy ordinance. With this second provision, the intention was clearly to retain the freedom to take action against constructions in which the building appears to be sufficiently in use, but which, in the opinion of the government, is not.

Obligation to report

If, for whatever reason, a house or office building is vacant for more than six months, the owner is obliged to report this to the municipality. If an owner fails to do so, he is in violation of the law. If he complies with the reporting obligation, he will consult with the owner within three months. The circumstances of the case will be taken into account, but the municipality will mainly want to ensure that the property is put back into use.

Obligatory nomination user

If the property is suitable for use and has been vacant for longer than 12 months, the Municipal Executive may nominate a user to the owner. The owner is then obliged to offer this user a user agreement within three months of the nomination. After the nomination, the owner still has the option of attracting another user, provided that this user actually occupies the premises within a reasonable period of time. If the property is not suitable for use, the Municipal Executive may require the owner to make the necessary arrangements to make the property suitable for use again.

Penalty

For a private landlord or owner-occupier, the fine is €2500 if the vacancy is not reported on time. For a professional landlord, the fine is €5000,- if the vacancy is not reported on time per empty house and for an empty building, the fine is €7500,-. However, this amount can even increase if the owner does not report any vacancy after the fine has been imposed. In that case, the municipality has the possibility to impose a further penalty of €10,000. All in all, the total amount can increase considerably if no notification is made, and it is therefore advisable for an owner to report vacancy of a house or office building to the municipality in good time.

 

If you have received or expect to receive a fine for vacancy and you are looking for legal advice, please contact M2 Advocaten.

picture of wittenberg building

Is a nursing home a home? Not according to the Council of State…

The Council of State recently made a decision in a case of principle on the question whether a nursing home can be considered a home. M2 Lawyers litigated on behalf of the owner and brought the case to a successful conclusion.

What was the case about?

The case was about the former Wittenberg nursing home in Amsterdam. The building is a national monument that was built in 1772 as a Luther’s Diaconie en Besteedelingenhuis (Luther’s Diaconate and Orphanage), intended for the accommodation and care of 40 orphans and 400 elderly men and women who could not provide for themselves. After the last orphans left in 1884, the building continued to serve as a hospital and retirement home for chronically ill and mentally disturbed elderly. From 1964 the building was used as a nursing home.

Marius Rijntjes and Ginio Beij acted on behalf of M2 Advocaten for the Diaconie who wants to realize short stay apartments in the building. The municipality was of the opinion that a residence permit was required for this, because the nursing home would have been lived in within the meaning of the Housing Act. The Diaconate did not think so.

What were the arguments?

One of the arguments put forward by the municipality was that the persons residing in the Wittenberg nursing home were registered there and resided permanently. According to the municipality, the fact that care was provided does not detract from the residential character.

M2 Advocaten argued among other things that care was the dominant element and that the two and four-person rooms in nursing home Wittenberg were geared to the provision of intensive care and not to running a household within the meaning of the Housing Act.

What was the procedure like?

In order to be able to submit the dispute to the court, the Diaconate applied for a housing withdrawal permit. This was rejected, after which the parties skipped the objection phase and submitted the matter directly to the court.

The District Court was of the opinion that the municipality was right to state that the Wittenberg nursing home had been used as residential accommodation. According to the Court, these were private rooms – because the beds in nursing home Wittenberg could be screened off with a curtain – that were occupied by single-person households using communal facilities (shower, toilet, etc.). Furthermore, the Court took into account that admission to a nursing home such as De Wittenberg generally means that someone lives there permanently and receives care.

The Diaconate did not agree with this judgment and lodged an appeal with the Administrative Jurisdiction Division of the Council of State. In these proceedings M2 Advocaten argued, among other things, that the beds in nursing home Wittenberg cannot be seen as confined spaces – they are not enclosed by walls – that can be inhabited by a household.

What was the outcome?

The Division followed the argument of M2 Advocaten and ruled that nursing home Wittenberg cannot be regarded as living quarters. In doing so, the Division considered that a room in which several (single) households reside cannot be regarded as residential accommodation within the meaning of the Housing Act. Residential accommodation within the meaning of the Housing Act refers to occupancy by a single household rather than several households.

Furthermore, the Division has ruled that a bed screened off by a curtain cannot be regarded as confined space. Although a curtain does offer some privacy by blocking the view, it does not close off a room in such a way that it can be occupied by a household according to common speech, according to the Division.

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

Marius Rijntjes (rijntjes@m2advocaten.nl)

Ginio Beij (beij@m2advocaten.nl)

Houses alongside water

Airbnb agreement with Amsterdam

Last Thursday, Airbnb agreed to modify its website. The update limits the number of days a property can be let per year. According to the City of Amsterdam, this agreement has made it more difficult to use properties as illegal hotels. With these kind of rules and agreements, the municipality wants to ensure that houses, which are used illegally for tourist rentals, will become available again for house hunters. The legal limit that a resident is allowed to rent out his house to tourists is 60 days a year in Amsterdam, as you can read in previous blog. In practice, however, many properties are available for longer rentals on the Airbnb website, and are also rented out more than those 60 days. This is already actively enforced by the municipality, and there are hefty fines for this violation.

As of January 1, 2017, hosts will be able to see in their Airbnb account how many days they are still allowed to rent, and will not be able to rent the property for the rest of the year if they passed the 60-day limit. [1][2]

Would you like to know more? Please feel free to contact us.

 

Ginio Beij (beij@m2advocaten.nl)

prohibition sign rolling suitcases

To be or not to Airbnb? Enforcement in Amsterdam

Previous blogs discussed what is enforced when it comes to B&B’s.

But what if you don’t want to start a B&B, but only want to rent out your house when you are on holiday? Through Airbnb, for example.

It is okay, if you follow two rules: no more than 60 days a year, and no more than 4 people can stay in your place. Is everyone following these rules? Definitely not. A 6-person quick-scan on the Airbnb website gives you more than enough choices of apartments/homes to choose from. Which is not allowed, because the maximum is 4 people. The City of Amsterdam wants Airbnb to make it impossible for a house to be rented out if they do not follow to the rules, so it is no longer possible to book for more than four people per house. The municipality also insists on compliance with the 60-day rule. So the municipality wants the website to automatically block a house as soon as it has been rented out for more than 60 days. In addition, the local authority wants Airbnb to provide the host’s address information to the local authority for more targeted monitoring. To date, Airbnb has no plans to provide that information, and Amsterdam is threatening to ban the platform in response.[1] The two parties are still discussing this. The municipality wants this data so that fewer violations are committed, making it easier for the municipality to track down offenders, and thus reducing the risk of nuisance from tourists.

How will this be enforced?

Detecting illegal activities is done in a number of ways: through reporting of neighbours or police, previous violations, mystery guests, and ‘scraping’ (by means of a computer program collecting data from a website)[2].  Sometimes this is done in an area-specific way: for example, if a neighbourhood receives a relatively large number of reports from the police and local residents, the entire neighbourhood is examined. Sometimes also in response to a report from a resident. Reporting by local residents is promoted from the municipality; a Summer Hotline was active last summer, and an online hotline Searchlight is still available.[3]

The municipality acknowledges that they do not have enough capacity to respond on all accusations from local residents, but promises to keep the reporters informed. The city centre, for example, has a total of 2.75 FTEs available for detecting and dealing with so-called illegal hotels, plus a couple indirectly from the Fire Safety department. [4]

Who is the offender?

In general, the law is executed in common cases where the property is only used for renting out to tourists and is not (or no longer) inhabited. This is then housing withdrawal and a violation of the Housing Act and the Regional Housing Ordinance. Or when a owner rent its house to too many tourists at the same time, which is not only a violation of the Housing Act and the Regional Housing Ordinance, but also a violation of fire safety.

A remarkable case has recently been heard by the District Court of Amsterdam. Father owns the floor on the ground floor, and used it as a pied-à-terre, so he is registered with another municipality. Daughter lives in the apartment above, and owns 1/100th of the pied-à-terre. Father is three to four days a week on the ground floor, the other days he rents it out to tourists. He arranges the Airbnb reservations, cleaning, and receives the rentals. Daughter receives the tourists and her number is given to them for questions; she receives no compensation for this. Unfortunately, this is not legal. It’s not allowed to rent a second home to tourists during periods when you’re not there. It is only allowed to keep a second home in Amsterdam if the second home is used by the tenant/owner him/herself, so you are never allowed to rent a second home to tourists in Amsterdam. On top of that, they rent out more than 60 days a year. The municipality therefore sees this as a withdrawal of the house from the housing market, for which they did not have a permit, and therefore a violation of the Housing Act and the Regional Housing Ordinance. Father will therefore receive the full fine of €12000. Daughter in the first instance as well. The Court ruled that this is not proportional; although she is complicit in the violation, she helps, but receives no compensation. The District Court is also of the opinion that if father had not rented the apartment, it would not have been plausible that she had committed the offence. She therefore received a reduced fine of €3000.[5]

Recently it has also been possible for the municipality to enforce the same rules in houseboats, but this was not possible because houseboats were subject to other laws and regulations.[6]

Airbnb at rental property and HOA

For rental properties, it may be that the contract states whether (sub) letting is allowed, or that permission must first be requested from the landlord. In some cases the landlord even has the right to dissolve the rental contract and to vacate the property.[7]

If the property belongs to an HOA, it may be regulated whether or not renting through Airbnb is allowed, or permission must be requested first. Sometimes, however, this is a gray area and short rentals are not explicitly prohibited, as this is a relatively new phenomenon. For additional information on this topic, read on in this blog.

Would you like to know more? Please feel free to contact us.

Lawyer Ginio Beij

Realtor statement. Client bound? Infringement of duty of care?

These questions were recently raised in a case before the Court of Appeal of Arnhem-Leeuwarden. The case was as follows.

The seller engages a real estate agent when selling his home. Next to the house is a building with a garden. In the garden is the remainder of a former house located (hereinafter: “the ruin”). According to the buyer, the broker would have ensured prior to the sale that there would not be any development on the site of the ruin. After the sale, it appeared that the owner of the neighboring plot has obtained a building permit for a new house to be built on the site of the ruin afterall. The buyer then holds the seller and the estate agent liable for the damages suffered by him.

With regard to the seller, the buyer takes the position that he has gone astray when entering into the purchase agreement. In other words: if the buyer had had a correct presentation of the building plans of the owner of the neighbouring plot of land, he would not have concluded the sale under the same conditions (i.e. he would have paid a lower purchase price). With respect to the estate agent, the buyer has taken the position that the estate agent acted unlawfully by announcing that the ruin site would not be built on, while it has turned out to be wrong.

The Court of Appeal first of all looked at the question whether the seller is bound by the statements of the broker. In this respect, the Court of Appeal pointed out that, in principle, an estate agent acts as the principal and not as a representative or authorised representative of the client. In order to bind the client, additional facts and circumstances are necessary, such as, for example, announcements by the broker about the content of the brokerage agreement and/or the conduct of the client. According to the Court, these additional facts and circumstances have not been stated or proven. This means that the communication of the broker about the ruin cannot be attributed to the seller. Therefore, the reliance on error is unfounded. The seller is therefore not liable.

Subsequently, the Court of Appeal assesses the question whether the broker has acted with sufficient care. In this respect, the Court of Appeal put first and foremost that, assuming that the real estate agent has made the relevant communication about the ruin, this communication does not concern a relevant property of the real estate itself, but an aspect in its vicinity. In that case, according to the Court of Appeal, a potential buyer may be expected to be a little more attentive than in the case of a communication from the real estate agent about the immovable property itself.

The Court does not share the view of the buyer that the estate agent’s statement should be regarded as a guarantee for the future. The Court of Appeal considers that it is a fact of common knowledge that zoning plans can change and that owners of adjoining plots can make changes to their plots. The Court of Appeal also took into account that the buyer did not rely on the mere communication from the real estate agent, but also investigated the question of whether there were any building plans in relation to the ruin prior to the sale and inquired with the municipality to that end.

With regard to the correctness of the notification of the real estate agent, the Court of Appeal considered that at the time of the notification there was a zoning plan on the basis of which only an annexe could be realized on the ruin site. Only later (read: after the sale) was exemption from the zoning plan granted for the construction of a dwelling on the ruin site. This means that the real estate agent’s notification was in accordance with the zoning plan. Moreover, prior to the purchase, the real estate agent inquired with the municipality, on which the municipality indicated that there were no building plans with regard to the garden of the neighboring plot. In short: the announcement of the real estate agent was correct. Therefore, the estate agent is not liable either.

It follows from the ruling that a real estate agent is not quickly seen as his client’s proxy. In addition, it follows from the ruling that an estate agent not only has a duty of care towards his client, but also towards third parties, and that the question of whether this duty of care has been violated is assessed on the basis of all the circumstances of the case.

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

Marius Rijntjes (rijntjes@m2advocaten.nl)

Suspension of rent due to defects? Tenant watch out!

In practice it happens regularly. A tenant who is fed up with it. Whether it is residential or business accommodation, there are defects that cannot be solved. There are leaks, there is draught, the rented property is far too hot or too cold. Despite several reminders, the landlord does nothing about it. And then what?

The solution that many tenants choose if they think it takes too long? Just not paying the rent for a while. If the landlord repairs the defect, the rent will be paid in retrospect. The means a temporary suspension of the rent payment.

In itself that sounds logical. What better way to persuade the landlord to take action than by hitting them in the wallet?

Nevertheless, a tenant should handle this carefully. According to established case law, rent can only be suspended if the defect is serious enough. In addition, it is important that the suspension must be proportional to the loss of rental enjoyment. If, despite a defect, it is still possible to use the rented property, it is not permitted to suspend the rent altogether. In practice, however, it often happens that the tenant completely suspends the rent.

A judgment of the District Court of North Holland, published at the beginning of this year, shows an example of how things can go wrong for the tenant. The ruling concerned business premises that were rented to a car rental company. At a certain point, a fire started in the rented premises, after which the business premises were damaged. A few months after the fire, the smoke and soot damage was repaired. However, the renter had suspended the entire rental payment, even after the repair, due to the cause of the defect. It had been established that the damage had occurred because the lessor had installed fire-resistant doors that did not close sufficiently.

The court, however, found this entire suspension to go too far. In general, the fact that the fire-resistant doors did not close properly was no reason to suspend the rent in full. It came down to the fact that the tenant had to pay the full rent with interest and fines. Read the entire judgment here.

Are you in doubt whether you can suspend the rent or do you want to know what other possibilities there are for remedying defects? Feel free to contact us.

Lawyer Ginio Beij (beij@m2advocaten.nl)