6 November 2019
In times when we are increasingly using our mobile phone or computer, sending a registered letter may seem old-fashioned and expensive.
Both the conclusion and termination of rental agreements is in practice often done by e-mail or WhatsApp.
This post was reviewed and updated on 9 July 2020
According to Section 7: 271 (3) of the Dutch Civil Code, in principle a lease must be terminated by writ or by registered letter. However, case law demonstrates that acts of termination by telephone or e-mail may be permitted under certain circumstances, although there is still a certain risk involved.
The Court of Appeal in Hertogenbosch already ruled in 2014 that an e-mail sent by the tenant still fell within the scope of Article 7: 271 (3) of the Dutch Civil Code, because it was not open to discussion whether the landlord had received this e-mail. After the tenant in question had (timeously) terminated the lease by e-mail, the landlord pointed out to him that this should take place by registered letter. The tenant then sent a written cancellation letter, but this time after the cancellation period. The Court found that it was sufficiently clear to the lessor that the lessee wanted to cancel, and that the strict application of Section 7: 271 (3) of the Dutch Civil Code would lead to an unreasonable outcome of the case. The Limburg District Court ruled in 2018 that cancellation by WhatsApp was also valid. In both cases it was clear that the so-called “advance directive” of one party had reached the other party.
It is worth noting that in both of the above cases it was the tenant who cancelled. Although Article 7: 271 of the Dutch Civil Code makes no distinction between tenants and landlords, in practice tenants enjoy greater protection than landlords. In theory, therefore, landlords could, on the basis of Article 7: 271, paragraph 3 of the Dutch Civil Code, be obliged to cancel a lease only by means of a writ or registered letter. This is partly dependent on the degree of rent protection of the tenants.
In that context, we would like to point out the decision of the Midden-Nederland District Court of 2017, in which the landlord terminated a fixed-term lease for less than two years by e-mail. Under this category of lease agreements, tenants enjoy less rental protection. It is therefore not surprising that the judge also assessed a cancellation from the e-mail address of the lessor’s son as valid cancellation. After all, it was sufficiently clear to the tenant that the e-mail was sent on behalf of the lessor. However, the tenant disputed that he had received the e-mail in question, and suggested that it might have ended up in his “junk e-mail” folder. The court agreed, and determined that the property owner had to prove that the tenant had received the e-mail, which was impossible without confirmation of receipt. The landlord in this case was unsuccessful.
In summary, it is possible for a tenant to send a cancellation by e-mail or WhatsApp, since according to recent case law these are valid alternatives to the registered letter. The same applies in principle to a lessor, although strict application of Section 7: 271 (3) of the Dutch Civil Code may result in a “digital” cancellation by the lessor having no legal effect. With WhatsApp, proof of receipt of the cancellation notice can be simplified by the so-called “blue check marks” that show that the recipient has read the notice. However, every WhatsApp user can disable the blue check marks, causing the sender to have a proof problem. The same applies to the e-mail, where the recipient can choose not to send a confirmation of receipt.
To prevent all this, we recommend sending the “old-fashioned” registered letter. For completeness, it can also be sent digitally in advance. E-mail and Whatsapp offer a solution when the landlord still wants to cancel on the last possible day of the cancellation period and use of registered mail is no longer possible. In that case, it can certainly pay to send the cancellation letter in advance by e-mail or WhatsApp. However, this remains a last resort, which carries the necessary proof risks.
If you have a question about this subject, please feel free to contact me.
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