13 November 2023
May a landlord charge administrative expenses when concluding a rental agreement? This question came up again recently.
On 17 February 2022, the Amsterdam subdistrict court made an interesting ruling. Tenants had claimed a refund of administrative expenses charged to them. The subdistrict court largely granted their claim. While the amount involved was only €200, this ruling will have major implications because the landlord is a large club.
According to the landlord, the costs were for a nameplate of €13.50 as well flat-rate costs for replacement of the lock, minor maintenance to prepare the property for use, viewings of the property and costs for the information folder provided to tenants. The landlord took the position that it was allowed to charge these costs to the tenants because the tenants benefited from these activities. Moreover, the landlord took the position that it was unreasonable for the tenants to claim refunds. This is because the alternative was for the landlord to factor the costs into the rent and this would mean, on balance, that tenants would pay much higher rent.
The basic legal principle is laid down in Article 7:264 of the Dutch Civil Code (Burgerlijk Wetboek), which states that the landlord may not stipulate any ‘unreasonable advantage’ when concluding the rental agreement. Back in 2012, the Supreme Court ruled that there is an ‘unreasonable benefit’ if there is no or only negligible consideration in return.
On 16 July 2021, the Supreme Court answered a number of preliminary questions raised by the subdistrict court. It followed that the landlord can charge for services that benefit the tenant, but not for services that it is required to perform anyway under laws and regulations, or that are part of normal housing activities. The subdistrict court held that the landlord’s activities were part of normal housing activities and the landlord was therefore required to refund the charges levied.
The landlord’s argument that a repayment obligation would lead to an unreasonable outcome was followed neither by the procurator general to the Supreme Court nor by the subdistrict court: given the system of maximum permissible rents, the costs of the aforementioned activities may be included in the determination of the rent to a limited extent, but to the extent that they cannot, those costs should remain the responsibility of the landlord. This was therefore a big loss for the landlord.
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