Article 7:204 et seq. Dutch Civil Code
The concept of a “defect” has a broad meaning. It essentially covers any limitation of the tenant’s enjoyment of the property that is not attributable to the tenant and that the tenant did not have to take into account in the case of a properly maintained property. Examples of defects include a broken water pipe or overdue maintenance of paintwork. It may also include a zoning plan provision that prevents the use of the property as residential accommodation. The landlord is obliged to remedy defects.
This does not apply to matters listed in the Decree on Minor Repairs (Besluit Kleine Herstellingen). These minor repairs remain at the tenant’s expense. Nor does it apply to defects where repair is impossible, or where repair is so costly that it cannot reasonably be required of the landlord. A factual disturbance caused by third parties does not fall within the definition of a “defect”. Nevertheless, a landlord may be obliged to take action against a nuisance-causing neighbour if that neighbour is also a tenant of the same landlord.
If the landlord, even after being properly given notice of default by the tenant, fails to remedy the defect, the tenant may carry out the repairs themselves and recover the reasonable costs from the landlord. The tenant may also deduct these costs from the rent. Alternatively, the tenant may choose not to carry out the repairs but instead apply to the court for a proportionate reduction of the rent until the defect has been remedied. These statutory rules cannot be derogated from to the detriment of a residential tenant.
Please note: without agreement or a court decision, the tenant may not unilaterally withhold rent. If they do so, they may be regarded as being in arrears, which could lead to termination of the tenancy agreement.
If a defect leads to consequential loss (such as repainting following a leak), the landlord is not automatically liable for this loss. The landlord is only liable if the defect is attributable to them, or if they knew or ought to have known of the defect at the start of the tenancy and failed to inform the tenant. A defect is attributable to the landlord, for example, where it arises from overdue maintenance or where previous repair works were not carried out properly. If the landlord already knew or ought to have known of the defect at the commencement of the tenancy, their liability cannot be contractually limited or excluded.
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