A rental agreement has various aspects. An important aspect of this is the landlord and the obligations he has towards the tenant. The starting point with regard to the obligations of the landlord is “the enjoyment that the tenant may expect based on the rental agreement”. After all, the obligations of the landlord are closely related to the rights of the tenant. In concrete terms, this starting point means two important obligations for the landlord. First of all, the obligation of Article 7: 203 BW to make the item available to the tenant. In addition, a maintenance obligation applies to the landlord, or in other words the regulation of defects in Article 7: 204 of the Dutch Civil Code. What exactly both obligations of the landlord mean, will be discussed successively in this blog.
Making the rented property available
With regard to the landlord’s first primary obligation, Article 7: 203 of the Dutch Civil Code stipulates that the landlord is obliged to make the rental property available to the tenant and leave it to the extent necessary for the agreed use. The agreed use concerns, for example, rental of:
- (independent or non-self-contained) living space;
- business space, in the sense of retail space;
- other business space and offices as described in Article 7: 203a BW
It is important to clearly describe in the rental contract which use has been agreed upon by the parties. After all, the answer to the question whether the landlord has fulfilled his obligation will depend on what the parties have described in the lease agreement with regard to the destination of the rented property. It is therefore important not only to state the destination, or at least the use, in the lease, but also to describe in more detail what the tenant can expect on the basis thereof. In this context, it concerns, for example, the basic facilities that are necessary to use the rented property in a specific way. For example, for the use of a building as a retail space, the tenant can also stipulate the availability of a counter, fixed shelves or partition walls, and completely different requirements for a rented space for example intended for the storage of wastepaper or scrap metal can be set in this context posed.
Maintenance obligation (default settlement)
In the context of the landlord’s second main obligation, Article 7: 206 of the Dutch Civil Code stipulates that the landlord is obliged to repair defects. What is to be understood by a defect is further elaborated in Article 7: 204 of the Civil Code: a defect is a condition or characteristic of the property as a result of which the property cannot provide the tenant with the enjoyment he may expect on the basis of the rental agreement. For that matter, according to the Supreme Court, enjoyment encompasses more than just the condition of the rented property or its material properties. Other enjoyment-limiting circumstances can also constitute a defect within the meaning of Article 7: 204 BW. In this context, consider, for example, the expected accessibility, accessibility and appearance of the rented property.
Although it is a broad term, encompassing all circumstances that limit the tenant’s enjoyment, the expectations of the tenant should not exceed the expectations of an average tenant. In other words, this means that the tenant cannot expect more than a well-maintained property. In addition, different categories of rental objects will each raise their own expectations, according to case law.
In any case, there is no defect if the rental object does not provide the tenant with the expected enjoyment as a result of:
- a circumstance attributable to the tenant on the basis of fault or risk. For example, minor defects in the rented property in view of the legal risk distribution are for the account of the tenant.
- A circumstance relating to the tenant personally. This could include, for example, a very low tolerance limit with regard to normal living noises from other tenants.
- An actual disturbance by third parties, such as traffic noise or noise nuisance from a terrace next to the rented property.
- An assertion without an actual disturbance, being a situation in which, for example, a neighbour of the tenant only claims to have a right of way through the tenant’s garden, without actually using it.
Sanctions in case of breach of the main obligations by the landlord
If the landlord is unable to make the rented property available to the tenant on time, in full or at all, then there is a shortcoming on the part of the landlord. The same applies if there is a defect. In both cases, the shortcoming entails sanctions for the landlord and gives the tenant a number of powers in this context, such as the claim of:
- Compliance. The tenant may then demand from the landlord to make the rented property available on time, in full or at all, or to remedy the defect. However, as long as the tenant does not require the landlord to be repaired, the landlord may not remedy the defect. However, if the remedy is impossible or unreasonable, the lessor does not have to do so. If, on the other hand, the lessor refuses the repair or does not do so in time, the tenant may remedy the defect himself and deduct the costs thereof from the rent.
- Reduction of the rent. This is an alternative for the tenant if the rented property is not made available on time or in full by the lessor, or if there is a defect. Reduction of the rent must be claimed from the court or the rent assessment committee. The claim must be submitted within 6 months after the tenant has reported the defect to the landlord. From that moment on, the rent reduction will also take effect. However, if the tenant allows this period to expire, his entitlement to a rent reduction will be reduced, but will not lapse.
- Termination of the tenancy agreement if lack of rent makes enjoyment entirely impossible. If a defect that the lessor does not have to remedy, for example because remedy is impossible or requires expenditure that cannot reasonably be expected of him in the given circumstances, but that makes the enjoyment that the tenant could expect completely impossible, both the tenant and the lessor dissolve the lease. In both cases, this can be done by means of an extrajudicial statement. Often, however, not all parties agree with the dissolution, so that legal proceedings have still to be followed.
- Compensation. This claim is only due to the tenant if the shortcoming, such as the presence of a defect, can also be attributed to the landlord. This is the case, for example, if the defect arose after entering into the lease and can be attributed to the lessor because, for example, he has not performed sufficient maintenance on the rented property. But also, if a certain defect was already present when the lease was entered into and the lessor was aware of it at that time, should have known it or informed the tenant that the rented property did not have the defect.
Are you as a tenant or landlord involved in the dispute regarding whether or not the landlord meets the conditions? Or do you want to know more about, for example, imposing sanctions against the landlord? Then contact Law & More. Our real estate lawyers are experts in tenancy law and are happy to provide you with legal assistance or advice. Whether you are a tenant or landlord, at Law & More we take a personal approach and together with you we will review your situation and determine the (follow-up) strategy.