Lessor Must Pick Up the Bill for Most Defects and Deficiencies

By Lis van Engelen

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 knowledge.

For 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, a rodent infestation, or partially blocked access to the premises. By definition, the lessee – that is you – is entitled to a ‘quiet enjoyment of the rented premises, under the tenancy agreement’; while the remedy of any defects impeding this right can in most cases be 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...

Duties of a Lessee
Defects and/or deficiencies can best be defined as ‘a state, quality or feature of the premises or undesirable circumstances that cannot 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 into 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 on 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.

Duties of the Lessor
Overdue maintenance, material damages, structural and construction faults, and rodent or 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 entail expenses which are beyond the lessor’s means under the circumstances, the obligation to carry out these extraordinary repairs is removed by the legislator.
Please note that any clause in your agreement exonerating the lessor from complying with abovementioned regulations is null and void!

What to Do?
In theory, most lessees and lessors are aware of their rights and obligations. However, it does not hurt to recapitulate the practical scenario to be followed in case of defects and deficiencies that need urgent attention and remedy.
First of all: take a deep breath, check whether the defect is covered by the Minor Repairs Decree, and inform your landlord of the impending need for repairs. Request that the repairs be carried out within a reasonable period of time, and keep record of all your communications, just in case…

What if Your Lessor Won’t 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 to request a ruling that would authorize you to carry out the repairs, forcing the lessor to compensate you for material and immaterial costs. Alternatively, you can request a ruling forcing the lessor to execute the necessary repairs.
3. As mentioned before, you can also claim compensation for the damages that have occurred due to the negligence or indifference of the lessor.
4. Finally, you can claim a reduction of the rent for the period during which your quality of life – remember the ‘quiet enjoyment of the rented premises’-paragraph? – was impacted by the defects and deficiencies left unresolved.

In theory, you can also forego the judge/court route 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 carried out and claim all related 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 considerable height, after leaning against a rotten wooden balcony rail. Hospitalized and later immobilized in his home for several months, the lessee was granted 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 dealing with un-cooperative landlords. And, even better, lessees – that is you! – are even better off having their tenancy agreement scanned 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.

Lis van Engelen, l.vanengelen@gmw.nl is a real estate / tenancy lawyer at GMW Advocaten and can be contacted at 070 -361 50 48.

 This article was previously published in The XPat Journal Winter 2011 Issue