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)

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.

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)

vintage phote grocery store

Business space rental: Deviating terms for retail and catering premises

Tenants of medium-sized business premises (7:290 BW) enjoy more rent protection than tenants of other business premises such as offices (7:230a BW). The idea behind this is that a shop or food establishment usually attaches more value to the specific location, for example for public familiarity. In principle, the tenancy agreement cannot deviate from this rent protection either, unless a judge agrees with the deviating clause. This blog provides an overview of the legal framework surrounding the deviating clause and its durability in court.

Legal framework

The statutory provisions relating to 290 business premises (7:290 to 7:310 Dutch Civil Code) are of so-called semi-prescriptive law. This means that it is not allowed to deviate to the detriment of the tenant. In case it does happen, the deviating clause is in principle voidable. Nevertheless, there may be situations in which not only the lessor but also the lessee has an interest in deviating from what is permitted under the statutory provisions, for example to make a more flexible lease contract possible. Examples of possible deviations:

– Deviation from the statutory lease terms (usually 5+5 years).

– Deviation by agreeing that termination of the lease can take place without notice or judicial review.

– Deviation from the possibility to request a rent review (7:303 BW) after the end of the lease period.

In these cases it is permitted to deviate from the statutory provisions, but the clause will have to be approved by a judge (7:291 paragraph 2 of the Dutch Civil Code). Therefore, a tenant’s consent to deviate is not sufficient. This is to prevent that a tenant can be put under pressure by the landlord to agree to the clause.

The judge uses the following criteria for approval:

– The tenant’s rights are not materially affected by the deviating clause.

– The tenant’s social position is so strong compared to the landlord that he has no need for reasonable protection.

Exception

With regard to substitution (Section 7:307 of the Dutch Civil Code) no approval can be requested for a deviating clause. The possibility for a tenant to sell his business including the rental rights is considered so important that a deviating clause is not allowed. Therefore, the court cannot give its approval to a clause that excludes substitution.

Subsequent approval

In practice, it regularly happens that the parties agree on a deviating clause and do not ask the court for approval. The question is, of course, what happens when the parties later disagree on the derogating clause.  A judgment of the Supreme Court has shown that judicial approval can also be given retrospectively. The question is whether, in such a situation, the court would still be inclined to rule that the tenant’s rights have not been substantially affected now that the tenant sees reason at that moment to want to waive the deviating clause. After all, approval of the deviating clause usually takes place with the tenant’s consent. It seems that the risk for the lack of prior approval lies mainly with the landlord.

Limitation period for reliance on voidability

In spite of the above, there is still an advantage for the landlord if he enters into a deviating clause with his tenant without the approval of the court. Pursuant to Section 3:52 of the Dutch Civil Code, the right of the lessee to invoke the voidability of the stipulation lapses after a period of 3 years after the lessee has invoked this ground for nullification. Usually this will be 3 years after the rental agreement has been entered into with the deviating clause, but under certain circumstances this can also be another time (see this previous blog of M2 Advocaten).

Conclusion

Legal practice shows that court approval depends on many different factors. In a judicial assessment of the deviating clause, the most important thing is that the tenant’s interests are not too much harmed. The tenant’s position is also important. A deviating clause will be less likely to be approved if the lessee is an independent entrepreneur, while in case of an internationally operating chain there will be considerably more room for the lessor to include a deviating clause.

Are you looking for advice in drawing up a deviating clause or a petition for approval of the deviating clause?  Please feel free to contact M2 Advocaten.

Lawyer Ginio Beij (beij@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

Building with store - Herenstraat

Landlord misses out on rent review after renovation of property

An owner of a retail property has his property rebuilt, which increases its surface area. He agrees with the tenant that the rent nevertheless remains the same. If the owner subsequently finds out that his property can now yield much more rent, he wants to have the rent revised (increased). However, the court ruled that he had in fact agreed a rent reduction with the tenant by asking the same rent for a larger space and that at least five years must elapse before the rent can be revised again. The lessor then misses out on many euros in rent. What is the exact situation?

As early as 1974, a retailer enters into a lease agreement for the rent of a retail property with accompanying storage space. In 2014, the property will be renovated, increasing the surface area of the retail space by 26 square meters. It is agreed that the rent will remain the same. In 2015, however, the owner finds out out through a real estate agent that, given the booming property market, his property could now yield tens of thousands of euros more in rent per year. This is also not strange now that the retailer has been paying only steadily more rent since 1974. The owner then asks for a rent review.

On the basis of Section 7:303 of the Dutch Civil Code, it is possible for a landlord (or tenant) to request a rent review. This means that every five years, since the last rent determined by the parties has started or has been claimed in court (or after the end of the first rental period), the current rent can be checked against the average rent of comparable business premises in the area and, if necessary, the rent can be adjusted accordingly.  The owner states that the rent was last adjusted in 2005. More than five years have elapsed since then, so the owner states that a rent review can now be carried out at a more market-based price.

The court ruled differently. Now that the refurbishment in 2014 has increased the retail space by 26 square meters, and the parties have agreed to leave the rent unchanged, a rent reduction has effectively been agreed, according to the court. After all, as a result of the expansion of the retail space, the retailer has paid no less than 15.5% less per square metre. Now that there has recently been a rent change introduced by the parties, the owner can only invoke the rent review from Section 7:303 of the Dutch Civil Code again after five years. Whether the rent has been increased or decreased in the past five years is irrelevant. In short, in this case the owner could not request a rent review again until 2019.

It is somewhat understandable that the owner made a mistake here. After all, the total rent was the same and did not seem to have changed. How could the owner have prevented this? The answer is quite simple. The owner should not have explicitly agreed with the retailer that the rent would not be increased. This concrete agreement is in fact the basis for the opinion that the parties have agreed on a reduction of the rent. The owner should therefore have requested a rent review immediately after the renovation without first agreeing with the retailer that the rent would remain unchanged.

As a landlord, do you want to request a rent review or are you, as a tenant, dealing with a rent review and do you have any questions about this? Please feel free to contact M2 Advocaten.

Lawyer Marius Rijntjes (rijntjes@m2advocaten.nl)

Paralegal Arjan Ang (ang@m2advocaten.nl)

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.

sign for sale and for rent

Does Rent goes before Purchase even when part of the leased plot is transferred?

If splitting the lease leads to a sensible result, transferring part of a leased plot will result in splitting the original lease into two leases. This was recently the case in a Supreme Court case. It concerned the following case.

Of a leased plot with a surface area of 792 m2, a part with a surface area of 241 m2 will be transferred to a new owner. On this particular part there is a building built by the tenant.

The new owner terminates the lease and claims payment of the remaining rental instalments. The tenant takes the position that no lease has been concluded with the new owner and that he owes nothing to the new owner. This raises the question whether the rights and obligations from the lease have (partly) been transferred to the new owner.

It seems to follow from parliamentary history that Section 7:226 of the Civil Code (sale does not break rent) only applies in the event of transfer of the entire property and not in the event of transfer of part of the leased property.  However, the purport of Section 7:226 of the Civil Code is the protection of the tenant, which is that the tenant does not lose his enjoyment of the lease upon transfer of the leased property.

In view of this purport, the Supreme Court has ruled that the transfer of part of a leased property may result in the rent ratio being split into two (or more) leases. It will have to be assessed on a case-by-case basis whether such a division will lead to a meaningful result.

In the present case, the Supreme Court considers that the division leads to a meaningful result, in particular because the building constructed by the lessee is located on the part of the parcel of land that has been transferred. As a result, the transfer of ownership splits the lease into two leases.

Furthermore, the Supreme Court considered that if the lease is split into two leases, it will not be clear to the tenant which part of the rent he has to pay to his original landlord and which part to his new landlord.

The Supreme Court ruled as follows. As long as the tenant has not taken cognisance of the transfer, he will be able to pay the entire rent in full to his original lessor. After taking note of the transfer, this no longer applies. However, the tenant will then be entitled to suspend payment of the rent until the landlords have informed him how the rent is to be split.

Want 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)

 

 

Can a VvE ban AirBnB or Short Stay?

A previous blog has already extensively discussed the requirements to start a bed-and-breakfast (read this blog here).

A situation that also regularly occurs is that within an apartment building properties are used for AirBnB or short stay. Especially during short stays this can be a nuisance. A group of tourists spending a long weekend in Amsterdam can usually be a bit noisier than the average resident. For example, we are aware of cases where the common areas (corridors, elevator, stairwell) have been damaged.

The question is whether the VvE can prevent such use and how. Most split certificates (based on the model regulations) state that the owner may only use the apartment according to the purpose stated in the deed. If the apartment’s purpose is living, then the question is whether renting for AirBnB or Short Stay is contrary to that purpose.

Case law shows that especially with regular short stay rentals this is contrary to the purpose of living. In several judgments it has been determined that living is a matter of ‘permanent residence’ and that a short stay does not fit in with this. See, for example, this judgment.

For an VVE, it is advisable to explicitly include the ban on renting out for AirBnB or Short Stay in the demerger deed or the internal regulations (the latter is easier to achieve in practice than amending the demerger deed). In this way, there is clarity for all apartment owners. The VVE often also has the possibility to impose fines in case of violation of this prohibition, in order for an extra means of pressure to prevent unwanted rentals. These fines must also be recorded.

However, it is not always the case that a rental on the grounds of AirBnB or short stay is in conflict with the purpose of living. If, for example, an apartment owner is abroad once for 3 months and rents out once for that period, this does not have to detract from the sustainable use as a home. In that case, such an occasional rental does not conflict with the purpose of living. An example of this in this ruling.

It must therefore always be taken into consideration whether a rental for short stay or AirBnB purposes is prohibited. Usually, this rental will be in conflict with the living purpose, so that the VVE can prohibit this use and even impose fines. If it is an occasional rental, it may be different in some cases, but that is an exceptional situation.

Does this situation look familiar to you or would you like to discuss the situation in your home office? Feel free to contact us.

Lawyer Ginio Beij (beij@m2advocaten.nl)