News: Free sector rent increases capped

Until now, it has been possible in the free rental sector to increase the rent practically indefinitely each year. As a result, rents in the free sector have risen considerably in recent years. Some leases already have an indexation clause linking the rent increase, and thus limiting it, to the rate of inflation. Minister Ollongren of the Interior and Kingdom Relations is now coming up with measures to ensure that rents in the free sector are capped by default at inflation plus 2.5%.  An indexation clause therefore remains an advantage for the tenant, now that it does not include an additional 2.5% increase, but tenants can no longer be faced with an almost unlimited rent increase if the measures come into effect.

You can read the message from the central government here.

Do you have any questions about this news item or about rent increases? Please feel free to contact M2 Advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

House sharing with two people possibly forbidden?

At the beginning of this year, the Council of State issued a remarkable ruling that holiday rentals (AirBnB) without a permit are prohibited under the Housing Act. Until then, holiday rentals had been allowed in a number of municipalities without a permit provided that the lessor met a number of conditions. As a result of the ruling, the municipality of The Hague has now banned holiday rentals altogether, and in Amsterdam it has since been banned in a number of neighbourhoods. In this blog, however, we will discuss certain forms of housing that may also be prohibited by this ruling without a permit.

The ruling

Before we discuss the possible effect of the ruling, we will first return to the essence of the ruling. The Council of State has confirmed that, pursuant to Section 21 under a Hw (Huisvestingswet = Housing Act), it is prohibited to withdraw residential property from its intended use without a permit issued by the municipality. To that extent, there is no news, but the Council also ruled that the Housing Act does not provide the authority to grant an exemption from that prohibition. In short, the policy of allowing holiday rentals without a permit under certain conditions, as was the case in Amsterdam, for example, does not comply with the law. The municipalities will therefore have to introduce a permit system to make holiday rentals possible again.

Municipalities allow house sharing with 2 persons

Therefore, it is not possible to withdraw residence without a permit, but Article 21 of the Hw mentions more activities that are prohibited. For example, pursuant to Section 21(c) of the Hw, it is also not permitted to convert or keep self-contained living accommodation into non-self-contained living accommodation. This conversion is, for example, the case if a home that is originally intended for one household, is being rented out to more than one household. Conversion is already subject to a permit requirement in Amsterdam, for example, but just as in the case of holiday rentals, it is permitted under certain conditions.

“A permit requirement does not apply to conversion due to occupancy by two persons. After all, the municipality of Amsterdam does not want to treat two friends who live together any differently than a couple”[1]

The municipality of Nijmegen implicitly states the same thing by only explicitly prohibiting conversion to more than two non-self-contained dwellings.[2] The municipality of Utrecht also only imposes a permit requirement in the event of conversion for the benefit of more than two persons.[3] The municipality of Rotterdam, on the other hand, takes an even more flexible attitude. It argues that a conversion permit is only required if there are 4 or more people living in a room.[4]

Despite the fact that these municipalities have the apparent aim of (restrictively) admitting house sharing without a permit, the Housing Act, if we follow the decision of the Council of State, offers no opportunity for this other than with a permit, just as in the case of holiday rentals.

Hospita (landlady) rental

In addition to room rental, hospita rental is also a form of housing. Hospita rental is a form of room rental in which the landlord also lives in the house. The housing ordinance of, for example, Nijmegen includes a special exception for hospita rentals.[5]

“The licensing requirement referred to in paragraph 1(b) of this Article does not apply to a situation with a hospess/hospita”.

But also in other municipalities hospita rental is allowed without a permit. However, again in view of the ruling of the Council of State, it seems to us that this is not possible under the Housing Act.

The concept of household

Whether a permit is required is crucial whether the dwelling is inhabited by more than one household. Although the concept of household is not defined in the Housing Act, it appears from the legislative history that the legislator assumes that in the case of a house being let by a room, the house as a whole no longer constitutes a separate dwelling. In addition, the Council of State has interpreted the term ‘household’ to mean a household if it can be assumed that there is an intention among the occupants to form a household for an indefinite period of time.[6]

The latter is not necessarily the case when, for example, a daughter who is studying shares a house with another fellow student, since there is usually no intention of letting her stay indefinitely. In short, strictly speaking, a conversion permit should also be applied for in this situation.

Enforcement

Finally, we come back to the current situation. As explained above, the consequence of the ruling of the Council of State that the sharing of housing by two (or more) persons each forming a separate household is thus prohibited and exemption without a permit is in fact not possible. Nevertheless, it is unlikely (and as far as we are concerned also undesirable) that municipalities would enforce the same if only because they see no need to do so for practical reasons. It therefore only becomes problematic when, for example, local residents request enforcement. In principle, municipalities are then obliged to enforce, which can lead to rather undesirable situations. Another option is, of course, to actually include all these situations in the permit system, but given the increasing bureaucracy, it would probably be even better if the legislator reviewed the Housing Act on this point. It will definitely be interesting to see in the coming period whether the line taken by the Council of State is actually consistently pursued.

Do you have any questions about this blog or would you like to know more about the (im)possibilities of house sharing? Please feel free to contact M2 advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

 

1] Explanatory notes Housing Ordinance Amsterdam 2020 p. 34

2] Housing Ordinance Municipality of Nijmegen 2020 Article 13 (1)

3] Housing ordinance Utrecht Region 2019, municipality of Utrecht article 3.1.2.

4] “Verordening toegang woningmarkt en samenstelling woningvoorraad 2019” (Rotterdam) article 3.2.2.

5] Housing Ordinance of the Municipality of Nijmegen 2020 Article 13 (2)

6] ABRvS 13 March 2013, ECLI:NL:RVS:2013:BZ3977

Possible temporary extension of temporary rental agreements due to Corona crisis

Now that the world is plagued by the Corona virus, many people stay at home as much as possible. But what if somebody has to leave his house right now because his temporary lease is expiring? After all, searching for other housing during this period can be made very difficult by, for example, quarantine, illness or loss of work. To alleviate these problems, a bill has been proposed to extend temporary rental agreements.

 

Act “Wet Doorstroming Huurmarkt”

What was the deal? On 1 July 2016, the Wet Doorstroming Huurmarkt came into force and it is possible for landlords to enter into a temporary lease for a maximum period of 2 years (in the case of non-self-contained housing a maximum of 5 years). Contrary to a tenancy agreement for an indefinite period, the landlord does not need a legal ground for termination and the tenancy agreement will end on the fixed end date.[1] However, if the temporary tenancy agreement is extended at any time, it will in principle automatically be converted into a contract for an indefinite period.

Bill on temporary rental agreement extension rules

Because it is by no means always desirable for landlords to enter into a contract for an indefinite period of time, a temporary law has been proposed in connection with the Corona crisis, which should make it possible to extend temporary leases, which end between 31 March 2020 and 1 July 2020, for a maximum period of three months. In that case, there will be no open-ended contract. For the time being, it can only be extended until 1 September 2020 at the latest. This means that if, for example, the lease would end on 1 July, it can be extended by a maximum of two months. It is not excluded that the measure will be extended if the situation so requires.

Timely notification remains relevant

In the case of a temporary lease, notice of termination is not required, but it is important that the lessor informs the lessee in good time of the date on which the lease is terminated, otherwise a contract for an indefinite period of time will be created. This notice must always be given to the tenant no more than three months and at least one month before the end date of the tenancy agreement. This is not different during the Corona crisis. It is therefore very important (!) for landlords to send this notification on time, even if there is an intention to extend the rental agreement in advance, otherwise a rental agreement for an indefinite period will still arise.

Obligation to provide information, realization of an extension

During the Corona crisis, the landlord will also be obliged, when sending the notification, to inform his tenant of the temporary renewal options. The tenant will then have one week to request an extension for the period of one, two or three months. The landlord is also free to make an offer for a temporary extension. In that case, the tenant is not obliged to agree to the offer. Furthermore, the statutory provisions regarding temporary leases remain fully applicable. This means, for example, that during the extension the tenant retains the option to terminate the temporarily extended lease with taking consideration of the notice period.

Refusal of extension

Only under certain circumstances may a lessor refuse a tenant’s request for an extension. If the landlord:

  1. has sold the property to a third party and has undertaken to transfer ownership of the property free of rent and use;
  2. has relet it and the tenancy agreement commences;
  3. wishes to move in himself and no longer has any other accommodation;
  4. wishes to renovate, which is not possible without termination of the lease, and has undertaken vis-à-vis third parties to make the accommodation available free of rent and use for that purpose;
  5. wishes to demolish and has undertaken vis-à-vis third parties to make the house available free of rent and use for that purpose, on a date prior to the expiry of the extension requested by the tenant and the landlord has undertaken before 1 April 2020.

On the advice of the Council of State, it will be added to these circumstances that a landlord may also refuse an extension if the tenant does not behave like a good tenant.

Do you still have questions regarding these measures? Please feel free to contact M2 Advocaten.

 

Lawyer Ginio Beij (beij@m2advocaten.nl)

Lawyer Arjan Ang (ang@m2advocaten.nl)

1] https://www.m2advocaten.nl/valkuilen-bij-tijdelijk-huurcontract-woonruimte

contract image

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)

Paralegal Arjan Ang (ang@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.

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

 

Service costs for liberalised rent: more freedom of contract for landlord of living space

Earlier we published a blog about a landlord of a free sector property, who had to repay €16,500 to her tenant because she had charged far too much for furnishing and because she had not specified Owner’s Association costs. In the meantime, it seems that a turnaround in case law has taken place and that lessors of houses in the free sector are being given more freedom to make agreements at their own discretion. 

Determination of service costs

In short, service costs are the costs of the property that the landlord charges on top of the basic rent for supplies and services. Landlords are required by law to provide their tenants with an annual overview in which all service costs charged are being specified, including the method of calculation (Section 7:259(2) of the Dutch Civil Code). In practice, landlords of privately owned dwellings do not always use an exact approach when determining the service costs. They have simply included an amount in the tenancy agreement for the service costs which they believe adequately cover their efforts.

Old situation

Determining the service costs by estimation could sometimes be expensive for the landlord in the past. When the tenant challenged the level of the service costs, it was not uncommon for the landlord subsequently to have to pick up the tab because it could not be demonstrated that the service costs charged were related to actual costs. The Amsterdam Court of Appeal ruled on this in 2017:

“The Court of Appeal deems (…) if the parties have agreed an amount for service costs, that amount must be reasonable, in the sense that it must be in reasonable proportion to the value of what is offered for it”.

In other words, the service costs charged by the lessor should be based on actual costs. Therefore, if the tenant could make it clear that the service costs were not based on actual costs, the lessor had to reimburse the service costs that were overcharged.

Current state of affairs

Remarkably enough, the Court of Appeal of Amsterdam has come to an entirely different conclusion on the basis of the legislator’s explanation of Section 7:259 of the Dutch Civil Code and is of the opinion that only when no or incomplete agreements have been made about the service costs, it should be determind that the service costs should be considered to be at least. For the rest, however, the Court of Appeal reasoned as follows:

“In the case of liberalized dwellings (…) contractual freedom with regard to (the level of) service costs (…) is the starting point, just as this freedom in principle also applies to the determination of the rent. (…) There is no need for a relation to the actual costs’.

In short, according to the last judgment of the Amsterdam Court of Appeal, in case of a liberalized dwelling the parties are free to agree on a compensation for service costs at their discretion without necessarily having to make a connection with the actual costs. In short, a landlord may charge €350 per month for the rent of a couch of €300, – provided the tenant has agreed to this.

Note

One may wonder whether the verdict of the court of appeal actually makes much of a difference. After all, even before this ruling it was possible for the landlord of a liberalized dwelling, if he was of the opinion that he was insufficiently compensated for the service offered, to increase the (bare) rent at will, provided the tenant only agreed to the higher rent. This ruling, on the other hand, forms a safety net for those landlords who, in the subdivision between bare rent and service charges, had wrongly included too much of the rent in the service charges.

However, with this ruling one may wonder what the function of the mandatory overview (Section 7:259 (2) of the Dutch Civil Code) still is, with the exception of the service charges part where the final amount is determined afterwards, as is the case for the use of utilities. There was already no statutory sanction for failure to provide an overview, and with this ruling landlords of liberalized dwellings seem to have even less reason to actually provide it, which does not improve transparency towards tenants.

Questions about service costs? Feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes rijntjes@m2advocaten.nl

Paralegal Arjan Ang (ang@m2advocaten.nl)

picture of contract breach

Termination of rental agreement due to urgent own use

Tenants of residential property generally enjoy considerable rent protection. Therefore, a landlord cannot terminate the tenancy agreement without a reason stated in the law. One of these reasons is termination due to urgent personal use, including renovation, for example. But can there also be urgent personal use if the property is made available to someone other than the landlord? This blog looks at a recent judgment of the District Court of Amsterdam in which urgent personal use was assumed despite the fact that the house would be made available to someone else.

Case study

The landlord owns a four-storey building, of which the first floor and the third floor (storage space) are rented to a tenant. In addition, the second floor (31m²) is rented to the landlord’s son who lives there with his girlfriend. At some point, the landlord wants to thoroughly renovate the entire property. According to her, the property no longer meets today’s requirements and is in urgent need of renovation. She points out, among other things, the noise, the crooked floors and the lack of an escape route.

However, she is unable to finance this renovation without her son, who in turn only wants to do so if he can continue to live in the building. Something that, according to the son, is not possible if he, his girlfriend and future children, only have 31 square metres at their disposal. The landlord’s plan is therefore to merge the three upper floors into a single dwelling for her son. She therefore wishes to terminate the tenant’s rent on the first floor due to urgent personal use so that the house can be renovated.

However, the tenant does not agree with the termination of the lease. The tenant states that this is not personal use, but that the termination of the lease is mainly done so that the son will have access to extra floors. Simply put, according to the tenant it is not the landlord’s own use, but use by a third party.

Judgement of the court

First of all, the court ruled that the landlord has made it sufficiently clear that the house is actually in need of renovation. Next, it must be assessed whether this renovation

the landlord’s own interest, and whether this interest exceeds the tenant’s interest in continuing to live in the dwelling. According to the court, there can indeed be ‘personal use’ if the house is to be used by someone else, such as, in this case, the son. Such use can be considered personal use if the landlord’s own interest is served.

In this case, if the son would not have access to the other floors, he would use his limited financial resources to purchase (larger) living space elsewhere. As a result, he would no longer be able to co-invest in the necessary renovation of his mother’s premises. Without this investment, she would not have been able to meet the maintenance obligations as lessor, which would have forced her to sell the property. Therefore, the Court is of the opinion that the renovation does serve the lessor’s own interests and that the lessor therefore has a legitimate ground for termination.

Conclusion

In order to be able to terminate a lease on a property, a landlord needs a reason as described by law. One of those reasons is if the landlord urgently needs the rented property for his own use, which is the case with a large-scale renovation. This renovation must then be in the landlord’s own interest, and in principle this is not the case if the landlord wants to make the rented property available to friends or family. However, in this case, the landlord could not retain the property if her son did not co-invest in the renovation, and that included her own interest to terminate the rent. The fact that the house would then be used by her son is therefore irrelevant.

It is striking that in this case the tenant did not dispute the fact that the landlord would have insufficient means at her disposal. Therefore, it was not investigated whether the landlord had other possibilities to pay for the renovation, other than through her son. It is true that the lessor did not have sufficient resources, but it is possible that another investor or a loan would also have made the necessary renovation possible without jeopardising the tenant’s rental position on the first floor. Incidentally, in the event of eviction or relocation due to renovation, a tenant is always entitled to a relocation allowance.

Do you want to terminate a rental agreement due to urgent personal use or are you renting correctly and your landlord wants to terminate the rental agreement without legitimate reason? In that case please feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes (rijntjes@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

service costs

Living space service costs: Can the OA (VvE) contribution be charged on to the tenant?

It regularly happens that a landlord passes on the Owners Association (OA, in Dutch “VvE”) contribution to his tenant as part of the service costs, but is this actually allowed? For example, in a recent judgment of the Amsterdam Subdistrict Court it was ruled that a landlord had wrongly charged the VVE contribution of 200 euros per month to its tenant as service costs. As a result, the landlord had to repay no less than €5500 in undue VVE contributions to the tenant. However, this does not mean that a VVE contribution can never be passed on to a tenant. When can the VVE contribution be passed on to the tenant and when can it not be?

Not charging VVE costs one-to-one

In the case as described above, the landlord had included in the lease that the tenant was due a monthly fee in respect of the ‘service costs VVE. However, the court ruled that VVE costs cannot be passed on to a tenant on a one-to-one basis. VVE costs may only be passed on to a tenant to the extent that they are directly related to the use of the property.

A landlord is therefore better advised to specify these VVE costs in more detail in order to make it clear that they are indeed user costs. It does not suffice to simply include a cost item ‘service costs VVE, since service costs for the VVE will normally not consist entirely of user costs. Incidentally, it should be noted that in this court case, the lessor could not subsequently prove that these were operating costs.

In some cases, it will not be immediately clear to the landlord what specific amounts the monthly remittance to the VVE consists of. In that case, a more detailed cost specification will have to be requested from the VVE in order to find out which parts of it can be passed on to the tenant. The tenant is therefore also entitled to such a cost specification.

 

Which costs within the VVE contribution can a lessor pass on?

Examples of costs that can be passed on to the tenant are:

– Heating costs

– Glass cleaning of windows that the occupant cannot reach without risk.

– Electricity consumption of communal areas

– Cleaning costs of common areas

– Sweeping of chimneys and drains

What costs within the VVE contribution can a landlord not charge to his tenants?

Examples of costs that cannot be passed on to the tenant are:

– Required maintenance costs for the complex (e.g. maintenance of the lift and/or existing lighting installations).

– Repairs to the building

 

How do you charge these costs to the tenant?

If a landlord wishes to pass on certain VVE costs to the tenant, these costs must first be specified and agreed in the tenancy agreement. Subsequently, the landlord is legally obliged to provide the tenant annually with a specified(!) overview of these service costs (article 7:259 paragraph 2). The tenant may require the lessor to substantiate the costs with statements of account. The lessor is not permitted to make a profit on recharged costs. Therefore, a lessor may not charge more for user costs than it has actually incurred.

The annual service costs overview must be provided within six months after the end of the calendar year at the latest. In short, before July 1st, the lessor must have provided the lessee with an overview of the costs for the previous calendar year. In addition, the provision of a service charge overview is necessary if a lessor wishes to increase the advance payment amount (Article 7:261).

In short, if user costs are included in your VVE payment, these costs may be passed on to your tenant provided this has been agreed in the lease agreement. Subsequently, provide a clear and specified service costs overview on time and annually. If the tenant does not agree with the service costs, the rent commission and otherwise the subdistrict court may be requested to rule on the service costs.

 

Arjan Ang and Ginio Beij

 

Do you have further questions about charging service costs or other questions?

Please feel free to contact M2 Advocaten.

contract

Pitfalls in case of a temporary rental contract

the introduction of the “Wet Doorstroming Huurmarkt”, it has become more attractive for landlords to enter into temporary rental contracts now that there is no longer a legal ground for termination. Nevertheless, there are still a number of other strict requirements that must be met. In practice, landlords in particular tend to go sideways on compulsory notice. What should you pay attention to?

Since the introduction of the “Wet Doorstroming Huurmarkt”, it has become possible for landlords and tenants to enter into a temporary rental contract that ends without notice. Previously, a legal ground for termination was also required in the case of a temporary lease. This means that the landlord could only terminate the tenancy agreement for a reason defined by law. Such a reason is no longer necessary to terminate a temporary lease.

Restrictions on temporary leases

Despite the fact that it has now become a lot easier to terminate a temporary lease, there are still restrictions that have to be taken into account. A fixed-term lease may only be concluded once with the same tenant. After all, if it were possible to conclude several temporary leases in succession with the same tenant, the rent protection could be circumvented.

Furthermore, a temporary rental contract may be concluded for a maximum of two years for self-contained accommodation, while a temporary rental period of a maximum of five years may be agreed for non-self-contained accommodation. If the tenancy agreement continues after this maximum rental period, the tenancy agreement will be converted into a tenancy agreement for an indefinite period.

Another important requirement is that although notice of termination is no longer required, the landlord is obliged to send a timely notice if he wishes to terminate the lease. This must be done no later than one month before the end of the tenancy agreement. If the landlord fails to do so on time, the temporary lease will be converted into a contract for an indefinite period.

Notice sent one day late

The fact that the deadline for a notification must be interpreted strictly was also evident from a ruling earlier this year by the District Court of Central Netherlands. In this case, the landlord had apparently miscalculated and it turned out that he was one day late in sending the notification. According to the District Court, the landlord had thereby given the tenant confidence that he wished to continue the lease for an indefinite period of time and apparently did not wish to make use of the option to terminate the lease by operation of law. The lessor was therefore bound by a contract for an indefinite period of time.

Notification not received by tenant

In addition to the fact that the notification must be sent on time, it is also important that the lessor, if it comes to a procedure, can prove that he has actually sent this notification to the lessee. In a recent judgment of the District Court of Midden-Nederland, the landlord had sent the notification by e-mail. However, the tenant claimed not to have received the e-mail, and the landlord was unable to provide any further facts or circumstances to the contrary. The court therefore ruled that the lessee had not been informed in time of the intention to terminate the lease.

Conclusion

With the Act on the flow of the rental market, the landlord no longer needs to give a reason why he no longer wants to continue the temporary rental agreement when it expires.  However, this does not alter the fact that the landlord is still bound to inform the tenant in good time of the fact that he does not wish to continue the lease. In addition, it is advisable to send this notification at least by registered mail or by bailiff’s writ, so that the tenant cannot easily claim not to have received the notification.

 

Lawyer Ginio Beij

Paralegal Arjan Ang

If you are looking for advice on drawing up temporary rental contracts or if you are renting yourself temporarily and are wondering what exactly your rights are, please do not hesitate to contact M2Advocaten.

checklist

Duty of care mediator. Control tenant. Damage due to loss of rent?

This question was recently raised in a case before the Arnhem-Leeuwarden Court of Appeal. The case was as follows.

A number of heirs offer the house of their deceased parents for sale through a mediator. After some time, the mediator let them know that no candidate buyers have presented themselves, but there is a candidate who would like to rent the house. Initially the heirs do not really feel for this opportunity, but eventually they agree and through the intermediary a rental agreement is made.

After this, things start going wrong. The police discover a hemp plantation in the house and by order of the mayor the house is closed. It is also established that electricity has been stolen. For the damage of over Eur. 7.000,– that Liander suffers as a result, the heirs are sued.

The heirs then take the mediator to court and claim compensation for the damage suffered by them. As a basis for their claim, the heirs argue that the intermediary has failed in his duty of care because he did not sufficiently investigate the tenant.

The Court of Appeal goes along with this. The Court of Appeal considers that the mediator should check the identity of the potential tenant and whether the tenant is able to pay the rent due, by obtaining information about his income.

The intermediary has fulfilled the first obligation – although the identity card handed over had already expired when the lease was entered into – but has not fulfilled the second obligation. The tenant submitted a payslip – which was later found to be forged – which raised numerous questions and which should have been a reason for the intermediary to obtain more information (copy of the employment contract, employer’s statement, etc.) and, if necessary, to contact the alleged employer. By contenting himself with the pay slip, the mediator violated his duty of care.

The question remains as to which damages are eligible for compensation. First of all, the heirs claim compensation for repairs to the house of more than Eur. 17,000. This is awarded because it is directly related to the presence of the hemp plantation in the house. In addition, compensation of the evacuation costs and compensation of Liander’s claim of over Eur 7,000 will also be awarded.

But what about compensation for missed rental income? That will be rejected. After all, the Court of Appeal considered that if the mediator had recognised that the tenant had submitted a false pay slip (i.e. had been careful), no rental agreement would have been concluded and the heirs would not have had any rental income.

The ruling shows once again that a mediator is obliged to screen candidates properly. If not, he violates his duty of care. If this is the case, not all damages are eligible for compensation, but only damages that are (causally) related to the violation of the duty of care. This is not the case for lost rental income.

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

Marius Rijntjes (rijntjes@m2advocaten.nl)