LEGAL AFFAIRS

Lessor Must Pick Up the Bill for Most Defects and Deficiencies

By Sabine Boellaard

Expats tend to agree that, after signing that much desired contract, the issue of accommodation at the new posting ranks highest on their list of priorities. Finding a house or an apartment that will keep everybody happy is a tricky issue anyway; even more so, when one needs to view a property, negotiate, and sign the lease in a foreign country, with very limited linguistic and legal awareness.

To those of our readers who do not benefit from the pampering and professional support of their own, in-house relocation desk and/or those who like to be well prepared and in the know, GMW Advocaten has compiled a brief compendium on the rights and duties of both lessees and lessors.

For Starters…
Dutch law points to the lessor if deficiencies of the rental property become an issue, be it a faulty plumbing system, rodent infestation or partially blocked access to the premises. By definition, the lessee – that is you – is entitled to have ‘quiet enjoyment of the rented premises, under the tenancy agreement’; and the remedy of defects impending this right can be most often charged to the lessor – your landlord. However, one is well advised to consult a specialist in tenancy law before ordering that jacuzzi to replace the broken bathtub, at the landlord’s expense...

What Are the Duties of a Lessee?
Defects and/or deficiencies could be best defined as ‘a state, quality or feature of the premises or undesirable circumstances that can not be attributed to the lessee, which have an impact on the quiet enjoyment of the rented premises, as stipulated in the tenancy agreement and as expected by the lessee at the time he or she entered the tenancy agreement.’
Minor repairs for that matter, such as the replacement of a faulty switch, are to be carried out at the lessee’s expense. A comprehensive list of such minor repairs can be found in the Minor Repairs Decree (Besluit Kleine Herstellingen). This list has a restrictive character, meaning that an item or action that is not part of the list cannot be charged to the lessee. Naturally, damages, defects and deficiencies caused by the lessee’s negligence must be restored at the lessee’s expense.

Leaving the Rest of It to the Lessor
Overdue maintenance, material damages, structural and construction faults or rodent and insect infestation are all the responsibility of the lessor.
By law, the lessor is bound to remedy all of the above and similar matters, compensating the lessee for possible damages caused by the defect prior to the repairs. Though hardly ever heard of in this day and age, there is one restriction: if a restoration to the natural or proper condition is impossible, or if it would imply expenses which are beyond the lessor’s means under the given circumstances, the obligation to carry out these extraordinary repairs is removed by the legislator.

What to Do When Stuff Breaks Down?
In theory, most lessees and lessors seem to be aware of their rights and obligations. However, it does not hurt to recapitulate the practical scenario to be followed in case defects and deficiencies need urgent attention and remedy.
First of all: take a deep breath, check whether the defect is covered by the Minor Repairs Decree, and let your landlord know about the stuff that just broke down. Ask for repairs within a reasonable period of time. Keep a record of all your communications, just in case…

What to Do if a Lessor Is Unwilling to Cooperate?
Should the lessor not follow up in a clearly communicated manner you have the following options:

1. You can initiate the remedy of defects and deficiencies yourself, asking your lessor to reimburse the expenses involved. If this request is met with unwillingness, then the expenses can be deducted from the rent. Be aware, though, that this could become a sticky issue, since the lessor might sue you for not paying your rental obligations in full! In this case, it would be up to the judge to decide which party is the injured one.
2. Even before taking any action, you may consider approaching the judge for a ruling that would authorize you to carry out the repairs, forcing the lessor to compensate the occurring material and immaterial costs. Alternatively, you can ask the judge for a ruling that would force the lessor to execute the necessary repairs.
3. As mentioned before, you can also claim compensation for the damages, which have occurred due to the negligence or indifference of the lessor.
4. Finally, you can claim a reduction of the rent for the period in which your quality of life – remember the ‘quiet enjoyment of the rented premises’ paragraph? – was impacted upon by the defects and deficiencies left unsolved.

In theory, it is also possible to avoid the judge/court and lodge a complaint with the local administration, asking them to help remedy the situation. In this case, your landlord will be summoned in an official letter to carry out the repairs a.s.a.p. The local administration also has the authority to have the repairs made and claim all occurring costs from the lessor, in case of non-compliance. In practice, however, this does not happen very often.

Example
The following example might illustrate how neglecting the obligation to properly maintain the rented-out premises can result in serious damages and claims on the lessor. A lessee, born 1927, suffered serious injury following a fall from a considerable height, after leaning against a rotten wooden balcony rail. Hospitalized and later immobilized in his home for several months, the lessee was granted a compensation for immaterial damages (pain and suffering) of € 34,000. Naturally, the lessor had to replace the rotten railing and remedy all related defects, as well.

Better Safe Than Sorry – Get Your Facts Right
In conclusion, lessees are well advised to go through their options, guided by a tenancy law specialist, when confronted with un-cooperative landlords. And, even better, lessees – that is you! – are even better off to have a tenancy agreement scan before they sign the lease on their future home, to make sure that all rights and duties of both parties are spelled out in a crystal clear manner.

Sabine Boellaard is senior lawyer at GMW Advocaten and can be contacted at 070 361 50 48 or s.boellaard@gmw.nl

Based in The Hague, GMW Advocaten was the first to set up a special legal expat desk, assisting expats – newcomers and ‘old’ residents alike – in all aspects of their professional and private lives, whilst in the Netherlands.
For more information please refer to www.gmw.nl/en.