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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)

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