Continuation of a rental agreement after the tenant’s death

The heirs of the tenant continue the rental agreement during this period, after which, the agreement automatically ends. It is also possible that the rental agreement is continued by someone else. For example, by a spouse or registered partner of the tenant, or the person the tenant lived with before their passing. In this article, I address the question of by whom and under what conditions the rental agreement can be continued in the event of a tenants death.

Can heirs/contractual co-tenants continue the rental agreement?

If the tenant rented the accommodation alone, the rental agreement is continued for two months by the tenant’s heirs (Article 7:229 of the Dutch Civil Code (Burgerlijk Wetboek)). After this period, the rental agreement ends by operation of law. This is different, if the tenant rented the accommodation together with someone else and the rental agreement is therefore in both their names. In that case, this contractual co-tenant is a party to the rental agreement and has independent rental rights. He or she continues the rental agreement.

Can spouses/partners continue the rental agreement?

If the tenant lived together with a spouse or registered partner, this spouse/partner becomes a co-tenant by operation of law (Article 7:266 of the Dutch Civil Code). A statutory co-tenant acquires independent rental rights alongside the main tenant and can continue the rental agreement on that basis after the tenant dies (Article 7:268(1) of the Dutch Civil Code). For more information on contractual and statutory co-tenants, I refer to this article.

Can cohabitants continue the rental agreement?

It may also be the case that the tenant was living together with a person, other than a co- tenant or spouse/partner. For example, a child or a live-in girlfriend or boyfriend. By law, this ‘cohabitant’ has no independent tenancy rights. As a rule, he or she is only allowed to stay in the property for six months after the tenant’s death. After that, they have to leave the property.

This rule is not absolute, however. In fact, a cohabitant can request the landlord to agree to the cohabitant continuing the rental agreement. If the landlord is unwilling to do so, the cohabitant has the right to request permission from the court. He or she must file a claim for continuation within six months of the tenant’s death, failing which causes this right to expire. The court then assesses whether four conditions of Article 7:268(2) and (3) of the Dutch Civil Code are complied with.

The cohabitant: conditions for continuation under Article 7:268(2) and (3) of the Dutch Civil Code

The court will grant a claim for continuation of the rental agreement by a cohabitant if the following conditions are met:

1. The cohabitant has his/ her main residence in the rented property;
2. The cohabitant shared a household with the deceased tenant on a long-term basis;
3. The cohabitant is financially able to pay the rent;
4. A housing permit has been issued for the accommodation (if required).

In particular, the second condition is usually a point of discussion: when is a tenant and cohabitant sharing a household considered to be on a long-term basis?

Sharing a household on a long-term basis?

The term ‘long-term basis’ implies an expectation in the future; the parties intended to continue to live together in the long-term. It follows from established case law that all the circumstances of the case can play a role in this. In assessing the claim for continuance, both objective and subjective factors that could indicate such intent are considered.

An objective factor may be that the cohabitant has lived with the tenant for a long time and there is no evidence of an intention to end the cohabitation at any point. In terms of subjective factors, one can think of the extent to which the tenant and cohabitant were financially equal; did they both contribute to fixed expenses and shared household chores? It is also relevant whether their relationship was reciprocal; did they mutually care for each other? And whether the cohabitant and the tenant spent their leisure time together, with the same friends. The cohabitant has to prove such objective and subjective factors with concrete facts and circumstances.

A child living with his or her parent: sharing a household on a long-term basis?

There are situations where it is difficult to prove that a cohabitant and tenant actually intended to continue living together in the long-term. For example, a situation where a child lived with his or her parent (the tenant). In 2014, the Supreme Court ruled that such a shared household is in principle not long-term, as a child is deemed to leave the parental nest at some point.[1] Only under special circumstances can the household still be considered as sharing on a long-term basis.

When are special circumstances involved? For example, if the child and parent have lived together since the child’s birth and continue to live together long after the child has reached adulthood. If, in doing so, the child also contributed equally to the fixed expenses and household chores, and regularly ate with his or her parent, washed the dishes, did the shopping and went on holidays with their parent, then a conscious choice to continue living together on a long-term basis can be inferred. A contraindication may be that the child continued to live with his or her parent because they were in need of care. As mentioned, all circumstances come into play and it is up to the child to prove that he or her and his or her parent made a conscious decision to continue living together on a long-term basis.

Conclusion

A rental agreement of a deceased tenant can be continued by another person under certain circumstances. A contractual co-tenant can do so by virtue of his or her independent tenancy rights. The same applies to a spouse/registered partner, who has become a co-tenant by law. A cohabitant has no independent tenancy rights. He or she requires the approval of the landlord or the court in order to continue the rental agreement. In the latter case, the tenant must meet a number of stringent conditions.

More information

Do you have more questions about the continuation of a rental agreement after the death of a tenant or are you looking for a real estate lawyer in The Hague? Please do not hesitate to contact us.

[1] Supreme Court 17 January 2014, ECLI:NL:HR:2014:93.