Экзамен зачет учебный год 2023 / Rueb, Tenancy Law Netherlands

The Netherlands

Dolf Rueb1/Sharon Kaufmann2

Introduction

A)Origins and basic lines of development of national tenancy law

1) When was it introduced and where (civil code, special statute, case law)?

When the Dutch Civil Code (DCC) was introduced in 1838, thirty odd clauses were dedicated to the law of tenancy, most of which were taken directly from the French Code Civil. These clauses contained amongst others a definition of the tenancy-contract as well as a regulation of the obligations of landlord and tenant, the consequences of the transfer of rented property, as well as the termination of the tenancy. These rules, which were in principle non-mandatory, will later be referred to as the general rules of tenancy. As of August 1st 2003, these have been replaced by an entirely new set of rules. Herein after the applicability of these rules is assumed.

2) Who was and is the political driving force?

The non-mandatory character of the former general rules of tenancy implied that in a period of severe housing shortage, they would offer the tenant no protection whatsoever, neither against high rents nor against premature termination. A similar situation occurred for the first time towards the end of the First World War. Accordingly, temporary protective measures were introduced and only retracted when, towards the end of the twenties, the equilibrium of the housing market was restored. The Second World War brought further housing shortage, inducing the occupational forces to introduce protective measures. Rents were thereby restricted, and the possibilities of one-sided termination of the tenancy were limited. After the Second World War these measures were retained, and in 1950 they were converted into a regulation, set up - likewise – with a public law character, in the Rent Act. This act covered the tenancy of all types of built real estate.

In 1971 a separate regulation was introduced for one specific type of tenancy meant for businesses, the so-called shop-keepers tenancies, which, once inserted in the DCC, meant the end of the influence of the Rent Act upon this category. The businesses implied are best described as those categories that offer a location open to the public, where goods can be purchased or services rendered. More in general, these businesses are to be dependant on the local public passing by such a location.

In 1979, separate protective rules were introduced for housing tenants; the protective measures were inserted in the DCC, whilst the measures concerning maximal rents were stated in a separate Residential Tenancies (Rent) Act, as well as in numerous implementation

1Partner Höcker, Rueb & Doeleman Advocaten in Amsterdam; lecturer at the University of Amsterdam.

2Student-assistant at the University of Amsterdam.

measures. Other housing subjects were simultaneously regulated, such as subtenancy, exchange of housing, and the legal status of cohabitants.

In order to stimulate the (sub)letting of rooms to students etc. the protection of tenants living in the same dwelling as their landlord has been reduced in 1993 (art. 7:274 par. 1 infra f in connection with art. 7:232 par. 2 DCC). Hereinafter this regulation is disregarded.

On August 1st 2003, an extensive alteration in the law of tenancy was implemented, in which the general rules of tenancy have been entirely restructured. Also the basic rules pertaining to maximal rents for housing tenancies have been inserted in the DCC. The rules for shopkeepers, tenancies and housing tenancies have been only slightly adjusted (art. 7:290 ff). The limited protection for businesses not being shopkeepers businesses has been transferred to the DCC (art. 7:230a), which also meant the end of the Rent Act.

3) Were these rules based on a particular philosophy (e.g. socialist)?

As mentioned earlier, the statutory protective measures were mainly prompted by a scarcity of housing, which is still presumed to continue for the time being. On general traits, a communis opinio has always existed implying that whenever housing scarcity arose, protective measures were justified. Within the spectrum of politics, however, some difference of opinion has existed as to just how far such measures might reach. In this respect, left wing and confessional parties were always inclined to go a step further than the more liberal (conservative) parties.

In comparison with labour law, one would get the impression that protection of the economic weaker party had taken place there at an earlier stage and in a more structured form, whilst in the case of the law of tenancy the need of the moment has been decisive.

4) Was there an influence by the national constitution or international instruments (e.g. ECHR) on tenancy law provisions?

The national constitution played no marked part in the introduction of the past laws on tenancy, and the same can be said for international instruments nor, in the case of the new law of tenancy, do the parliamentary documents reveal any references to the national constitution or to international instruments.

5) Were they inspired by another legal system? What were the principal reforms up to the present date? Were there political ideas behind these reforms? What, if any, has been the interplay between statutory and judicial intervention in the development of tenancy law?

As mentioned earlier, the general rules of tenancy are of French origin. The new general rules, however, build upon a preliminary draft from 1972, which was much more inspired by clauses from the German BGB of the time.

Due to their more general (and not at all very detailed) and regulating character, the provisions of law of tenancy dating from 1838 left ample scope for contractual arrangements (concerning e.g. the costs of upkeep, liability, subtenancy, and availability for occupation). To

an equal degree, they offered scope for interpretation and amplification by the judiciary, often assisted by standards of reasonableness and fairness, as laid down in art. 6:2 and 248 DCC. The ensuing jurisprudence provided for instance detailed instructions as to the obligation of the landlord to take action against inconvenience caused by other tenants. Similarly, the jurisprudence worked out in detail the instances in which the tenant is to allow urgent works such as renovations to be carried out. Finally, the conditions were established wherein no remedy could be sought in divers contractual clauses (e.g. in the case of exoneration, availability, or rent increase).

To a limited degree, the pertaining jurisprudence has been codified in the new general rules of tenancy. Although the legislature repeatedly emphasised their intention that the new general rules should not lead to results different to the old ones, yet this cannot be taken for granted, since the new rules contain more regulations, more detailed regulations, and more mandatory law than did the old rules. One cannot therefore be certain whether the judiciary, however inclined to stick to the old results, will feel free to oppose the system and/or the wording of the new rules.

B) Basic structure and content of current national law

aa) Private tenancy law:

6) Central rules

The conclusion of a tenancy contract

No form is prescribed for the validity of contracts in general; there are no rules that dictate the form in which the consensus is to be stated. It is customary for the rights and obligations of both parties to be regulated extensively, yet parties can also limit themselves to bare essentials, i.e. the object of the tenancy and the amount of the rent. Remaining issues are then filled in by the statutory regulation.

Obligations of the landlord

The landlord is obliged to render available the object of tenancy, and provide the tenant with the use to which he is entitled. If this is not the case, whether the cause is material or immaterial, it is considered to be a deficiency (art. 7:204 par. 2 DCC). In the case of a deficiency, the landlord is in principal obliged to provide a remedy (art. 7:206 DCC). So long as this is not the case, the tenant is entitled to reduction of the rent, proportional to the loss of enjoyment (art. 7:207 DCC). Finally, the landlord can also be held liable for any ensuing damage to the tenant (art. 7:208 DCC).

Obligations of the tenant

The tenant is obliged to pay the agreed rent (art. 7:212 DCC), and use the property in a manner befitting a responsible tenant (art. 7:213 DCC), as well as in accordance with the

intended use (art. 7:214 DCC). Far-reaching alterations may be made only with the permission of the landlord, casu quo of the judiciary (art. 7:215 DCC); the tenant is obliged to tolerate urgent works and reasonable plans of innovation (art. 7:220 DCC). He is also obliged to deliver up the object of tenancy in a condition none other than that described at the time of entering into the agreement, except for normal wear and tear, once the tenancy has expired (art. 7:224 DCC).

The rent

In general, the rent can freely be agreed upon (art. 7:246 DCC). On the other hand, the housing tenant is authorised to have an agreed rent verified by the rent tribunal (art. 7:249 DCC). The rent tribunal will then, according to standards of quality - resulting in the allotment of points to the housing - determine the total number of points, which corresponds with a maximum rent. Should the agreed rent turn out to be higher than the maximum, the rent tribunal will accordingly lower the rent (art. 11 Rent Residential Tenancies (Implementation ) Act). Objections against the ruling by the rent tribunal can be brought before the judiciary (art. 7:262 DCC). The score in points of the housing also plays an important part in the question as to whether the landlord is incidentally authorised to increase the rent (e.g. in the case of improvements (art. 7:255 DCC). In principle, the rent can be increased yearly according to a maximum percentage prescribed by the minister of public housing. The rent increase can then be put into effect through a clause in the contract (art. 7:248 DCC), or onesided, if needed by enforcement by the rent tribunal (art. 7:252-253 DCC). The rent can also be reduced during the rental period on the tenant's initiative, either due to the fact that it has become apparent that the rent exceeds the statutory maximum (art. 7:254 DCC), or because defects have occurred (art. 7:257 DCC). A fitting up that is out of date can mean such a defect, even though the state of maintenance is adequate (art. 7:241 in connection with art. 7:204 par. 2 DCC).

7) Is current tenancy law state law or infra-national law (if legislative jurisdiction is divided: what is the allocation of competencies and for which subject matters)?

The basic rules of the tenancy law, including the manner in which they are to be put into effect, are laid down in acts of parliament (which takes place, according to Dutch law: in collaboration with the government). The minister of public housing establishes the standards for the allotment of points relevant to housing, the value in money that corresponds with these points, and the standards for rent increase, after having consulted the Second Chamber (the approximate Dutch equivalent of the British House of Commons). The minister is held politically responsible for the development of rents.

8) To what extent is the legislation divided up into general private law and special statutes? To what extent are these rules mandatory and dispositive?

The DCC consists of eight odd books; book 3 contains the law of property in general, and book 6 contains de general rules of obligations. Book 7 contains specific contracts, such as purchase, exchange, tenancy, and the labour agreement. Books 3 and 6 regulate the general dogmas of private law, and apply therefore to the law of tenancy, inasmuch as no differing regulation is offered. In the drawing up of the new general rules of tenancy law, the books 3

and 6 of the DCC - which were introduced in 1992 - were taken into account as far as possible. Matters regulated in those books are not again regulated in the general rules of tenancy law. As mentioned earlier, also the general rules of rental law, pertaining to maximum rents, have been inserted in the DCC. The rules for application are to be found in implementational legislation for housing rents (Uitvoeringswet huurprijzen woonruimte). The criteria laid down for the appraisal of alterations of rents are to be found in a ministerial decree on housing rents, and especially in the thereby offered explanatory notes and appendices (Besluit huurprijzen woonruimte).

Mandatory/dispositive

The general rules of the law of tenancy offer only a limited number of mandatory regulations, in which case a contractual divergence detrimental to the tenant has no effect, e.g. the rule that the tenant is authorised to remedy a lasting defect, thereby settling the costs by deducting them from the rent (art. 7:206 lid 3 DCC), as well as the rule that the landlord may not exempt himself from liability for defects known to him at the time of contracting (art. 7:209 DCC). Some other rules to be found in the general rules of tenancy are declared mandatory only inasmuch they pertain to the law of tenancy of housing (enumeration in art. 7:242 DCC). The law of tenancy of housing is generally speaking indeed of a mandatory nature, and even more so the legislation on maximal housing rents.

9) Are there other forms of lawful possession of a premise for housing purposes (e.g. licence vs. tenancy in English law)?

There are in fact no other forms of lawful possession of a premise for housing purposes. In the case of prolonged vacancy, a premise may well be allowed to be occupied free of charge by e.g. students. Such users can be held accountable for the actual costs of water, gas, electric energy, &c. However, as soon as such users are required to pay compensation for the actual use of the premise, they will be considered to have entered into a tenancy agreement, whereby the rent protection of tenure will be applicable. In certain conditions, however, protective rules can be set aside, notably when the stipulated use is by nature limited to a short period of time, as would be the case with a holiday house (art. 7:232 par. 2 DCC), or a house due for demolition (art. 7:232 par. 4 DCC). Finally, a special regulation, the Vacant Property Act (Leegstandwet), provides the possibility of letting under surveillance by the municipal authorities premises awaiting renovation and the like. The rules of security of tenure will then not apply to such tenancy agreements.

10) To what extent does national or European consumer protection legislation play a role?

Consumer protection legislation plays a part only in the assessment of general terms and conditions, i.e. any written clause that has been drafted in order to serve in several contracts (art. 6:231 ff DCC).

Inasmuch as such general conditions do not concern a key element of the contract (such as the rented premise and the amount of the rent itself), they can be declared void whenever so demanded by the tenant, should they be considered unreasonably onerous. In book 6, several clauses are stated as either being generally considered being unreasonably onerous (art. 6:236

DCC), or that they are so presumed to be (art. 6:237 DCC). One might mention here that these clauses were not introduced with any special attention to the practise of the tenancy law, and indeed it has seldom occurred that a tenant-consumer claimed a clause to be void on such grounds. It is to be expected that the importance of the regulation of general terms and conditions will decrease even further now the new tenancy law is implemented, taken into consideration the increased number of mandatory rules, especially where housing is concerned.

11) Does the relationship between general and special rules work properly so as to create legal certainty?

In general, the relationship between general and special rules is clear enough to avoid problems. As mentioned previously, the issue at stake will frequently be: the intention of the legislature that the new regulation should not differ grosso modo from the old one. There are, however, also rules covering matters hitherto unregulated - the significance of which will have to be assessed by consulting the statutory regulations themselves as well as the pertaining parliamentary documents.

12) Is the position of the tenant also considered as a real property right (and therefore also governed by property law) or (only) as an obligatory right?

The position of the tenant gives him obligatory rights only. The one exception is the case wherein the landlord transfers his right of ownership (or a restricted right that includes the right of tenancy) to a third party. That third party will then automatically become the tenant's new landlord, and he will obtain all assets and liabilities of the former landlord, at least to the extent wherein those rights are connected to the use of the premise for the rent the tenant is obliged to pay (art. 7:226-227 DCC).

bb)Social regulation affecting private tenancy contracts

13)Regulation on provision of public housing, i.e. houses owned by the State or other public entities

Approximately half of the available housing belongs to entities working in the interest of public housing, consisting mainly of legal persons governed by private law (to be called hereafter: corporations). They are held under surveillance of the minister of (amongst others) public housing, and allow priority to housing persons who encounter difficulty in finding suitable housing, due to their income or other circumstances. In the Subsidised Rented Sector (Management) Decree (Besluit Beheer Sociale Huursector), rules have been inserted concerning their care for the available housing, the liveableness in neighbourhoods and districts, tenancy and sale policy, the participation of inhabitants, and financial continuity.

14) Special public or mixed public/private housing regimes subsidised or promoted by public entities.

The Subsidised Rented Sector (Management) Decree contains regulations that address these corporations. Their tenants are only able to appeal indirectly to these regulations with regard to tenants' participation. Apart from that, the same general rules of tenancy are for them in force. As far as tenants' participation is concerned, the general rules of tenancy also contain a Consultancy Act Landlords and Tenants (Wet overleg huurders verhuurder).

15) Direct subsidies and/or tax incentives for the tenant or the landlord affecting private tenancy contracts.

Under the Rent Allowance Act (including bye-laws), tenants with an income of approx.

E 15.000 to approx. E 23.000, depending upon their personal circumstances, are permitted a rent subsidy, so long as the rent does not exceed a certain amount, again depending upon their personal circumstances, not exceeding E 585 per month. For the claim itself, it is of no consequence whether the landlord is a corporation or a large/small commercial landlord. Corporations are allotted no exploitation subsidies; on the other hand, they are allowed relatively favourable loans for new housing as well as renovation. However, the already limited freedom to increase rents periodically is even more limited for corporations.

16) If data or experiences available: does the national policy favour, e.g. by incentive measures, rented housing and housing property.

Particularly in the more expensive housing category, stiff competition exists with the owneroccupied housing sector. As spending power increases, the well-to-do tenant will be inclined to look out for a house of his own, which is partly the result of the exceptionally favourable opportunity offered for deduction of mortgage interest from one's income. The very opposite is taking place in the present-day deterioration of the economic situation. The policy is being pursued to encourage owner-occupancy, partly due to the greater care an owner tends to take for his own possessions as well as the environment. Due to the rental policy held for more expensive housing, only this particular category is of interest for investors. This same category, however, is the first to feel the market pressure in a deteriorating economic situation: the tenant who is no longer able to pay the rent will look for cheaper housing, whilst the tenant who is still able to do so will look for a house of his own.

17a) Public law measures of assigning houses to people in need (especially to people who would otherwise risk becoming homeless) in potential disrespect of private tenancy contracts.

According to the Subsidised Rented sector (Management) Decree, one of the tasks of the corporations is to, as far as possible, let their housing supply to those with the lowest incomes and in search of housing.

Housing Allocation Act

The Housing Allocation Act (Huisvestingswet) seeks to obtain a well-balanced and righteous distribution of scarce housing. Municipal authorities are qualified to introduce housing regulations to allot low-priced housing. In that particular category, no such housing may be made use of without a housing license. The supervision of the compliance with this regulation lies entirely in the hands of the municipality itself. No action taken at variance with the

Housing Allocation Act will however jeopardise the validity of a tenancy contract. The Housing Allocation Act can help to give priority to those in search or housing that find themselves in a distressing situation.

17b) Public law measures to prevent dwellings from staying empty.

The aforementioned Housing Allocation Act empowers the municipal authorities to claim housing that is found to be vacant. This claim can be made for a period not exceeding 10 years. A valid claim has to be followed by an allocation to those who are going to make use of the premises. The municipality decides on the amount that will have to be paid to the owner. The use of this measure has declined along with the decrease of the housing-shortage.

c) Summary account on -tenancy law in action

18) What is the general situation in regard to housing?

After the Second World War, approx. 4 million new houses have been built. The total number of houses mounts up to approx. 6 million, of which approx. one half consists of rented housing. Of these accommodations, approx. 2¼ million belongs to the corporations. In point of fact, there is now sufficient housing. During the last 20m years, however, the shortage of housing has become one of quality, not of quantity, and therefore the existing supply does not meet the demand. Moreover, there are major regional differences: in the western part of the Netherlands, the Randstad conurbation, there are long waiting periods, especially where cheaper housing is concerned, whilst outside the Randstad we now and again meet with vacant buildings. In some districts within the Randstad there is vacancy as well, but this is due to deterioration of the housing environment.

At the moment, the corporations - united in a co-ordinating organisation (Aedes) - actually have more influence than the tenants themselves. On a national scale, tenants are united in a tenantsassociation (Woonbond), which is active mainly on a local scale, by supporting groups of tenants.

Housing costs

For years in succession, rents have increased more than incomes, which means that the income percentage to be spent on rent has increased substantially. In order to, nevertheless, keep adequate housing affordable to those with lower incomes, a system of rent subsidy has been developed. The tenant to whom this applies may receive a contribution towards his housing costs. The lower the rent the lower the subsidy and the amount can become higher if necessary due to personal circumstances - such as the size of his family and his income.

19) What is the role of associations of landlords and tenants?

The "constitution" of the corporations, the Subsidised Rented Sector (Management) Decree, dictates that the corporations allow its tenants (organisations) the opportunity to voice their

opinion on matters of policy and management, such as maintenance of the housing and the housing environment and the policy concerning the liveableness of neighbourhoods and districts, the policy concerning purchase and demolition of housing, the allotment policy, the letting policy, the content of tenancy agreements, rents, and the rendering of services. The Act on Consultation Between Landlords and Tenants (Wet overleg huurders verhuurders) offers a generally similar regulation for commercial landlords with a housing supply exceeding 100 dwellings. Up to now, the thus created consultation opportunities have been made use of to a reasonable extent; a frequent problem, however, lies in the superior knowledge of the landlord.

20) What is the role of standard contracts prepared by a tenants, or landlords, association?

Both the social and the commercial landlords have their own standard contracts.

The discrepancies in content are not numerous. Regulations that differ from the general rules of tenancy (non-mandatory) are to be found inasmuch as they do not concern security of tenure and rent control (mandatory), but these have never gone too far. A standard tenancy contract is after all a kind of visiting card, and what's more: extreme deviations have always been rejected by the courts, either with reference to the rules of reasonableness and fairness, or based on clauses concerning the voidability of standard terms and conditions. Due to the increase in the amount of mandatory law in the new law of tenancy, the scope for contracting at variance with these new rules will diminish even further.

21) Is tenancy law often enforced before courts by landlords and tenants, or are there - voluntary or compulsory - mechanisms of alternative dispute resolution? Are they made us of?

Tenancy disputes are brought before the subdistrict courts, wherein one member of the district court makes decisions. Litigation is allowed to take place without legal representation. As in all procedures in the first instance nowadays, experiments are being made with different ADR methods, mediation in particular, but as yet no spectacular progress has been made. In the case of rent disputes, the main rule is that in the first instance the case be submitted to an independent administrative authority, falling under the Minister of Housing, i.e. the rent assessment committee . Only after the case has been investigated and ruled by this committee, which is presided by a jurist, can it be put before the subdistrict court.

22) Are there peculiarities for the execution of tenancy law judgements (e.g. prohibition of or delays for eviction)?

The execution of tenancy law judgements has few peculiarities of its own. In tenancy cases there may be, however, a tendency to more readily assume that there has been abuse of the power to enforce a court decision (in the case of the landlord) or (in the case of the tenant) an emergency, serving as a reason to postpone execution. The number of cases, however, in which such a suspension has been claimed successfully, is very small indeed. Landlords tend to do their very best to avoid the ultimate eviction, all the more so if there is no conceivable hope of another dwelling for the tenant.

23) To what extent does a fair and affective access to courts for tenants exist?

The first court to occupy itself with tenancy cases is the subdistrict court, to the competence of which belong also: labour disputes, as well as other cases with an interest at stake not exceeding an amount of E 5.000. Litigation before the subdistrict courts without a legal assistance counsellor is, however unusual, in itself possible. As soon as there appears to be a serious conflict, the less well-to-do may apply for free legal assistance of a bailiff or, more frequently, of a lawyer. The litigant is due to pay a contribution, which increases according to his income. Litigation is fairly rapid in tenancy cases, de average time involved being from six to nine months. Appeal is allowed against the decision of the subdistrict court, either if the value at stake has not been defined, e.g. in the case of setting aside an agreement, or if it exceeds E 1.750. The appeal is brought to the court of appeal, where legal representation is mandatory

24) How about legal certainty in tenancy law?

For years on end, tenancy law has been considered poorly arranged as well as inaccessible, and one fears this will be no different since the introduction of the new law on August 1st 2003. The question will frequently arise as to what weight the different views of the ministers, voiced in Parliament, actually carry, inasmuch as they do not go hand in hand with the wording of the Act. We must not, however, suppose that contradictory legislation now lies before us, and any legal mind that takes the time and trouble required for adequate perusal, will find both legislation and pertaining literature quite accessible.