When landlords do not voluntarily consent to such requests, tenants may invoke Article 7:270 of the Dutch Civil Code (BW) to request court approval for substituting another tenant in their place.
In a comprehensive overview published in the journal Huurrecht in Praktijk (Housing Law in Practice), Mr. M. van den Oord aptly concludes that in the vast majority of (published) cases, the balancing of interests tends to favor the tenant. However, recent case law from the District Court of The Hague demonstrates that landlords can successfully oppose such requests.
Home Exchange
While tenants view home exchange as a suitable means to obtain more appropriate housing without enduring long waiting lists, landlords often face a new contractual party they did not choose. Furthermore, landlords may see their plans for the property—such as sale or renovation—jeopardized.
Under Article 7:270, paragraph 2 BW, a request for home exchange can only be granted if the tenant demonstrates a compelling interest in the exchange. The tenant’s interest in the proposed home exchange must outweigh the landlord’s interest in denying the request. The proposed tenant must also provide sufficient assurances of fulfilling the rental agreement, particularly their payment obligations.
If the housing in question requires a housing permit under the Housing Act 2014, the proposed tenant must also possess a (provisional) housing permit.
Compelling Interest?
A compelling interest is often identified in situations involving changes in family circumstances or medical conditions. In a recent case, we argued on behalf of our client that Article 7:270, paragraph 2 BW infringes on contractual freedom and property rights and that the requirement of a compelling interest should not be applied too lightly.
Case Law
However, case law shows that not all courts apply strict criteria. For instance, the Court of Appeal in ’s-Hertogenbosch ruled in 2006 that a tenant who believed they experienced health problems due to a nearby antenna and another tenant suffering from homesickness both had a compelling interest. Similarly, the Amsterdam District Court ruled that an older woman had a compelling interest because the proposed home in Egmond aan den Hoef—with its sea air and reduced traffic—would be better for her health and mental well-being than her current ground-floor apartment in Amsterdam, which she had occupied for twenty years.
In my opinion, these cases raise questions about whether sufficient distinction is made between a reasonable interest and a truly compelling interest. Experience shows that once a compelling interest is established for the tenant, the landlord’s interests are often given less weight.
Case at the District Court of The Hague
In a preliminary injunction case before the District Court of The Hague, the request for home exchange was denied. The tenants argued that they needed a larger home due to the birth of a second child, while the proposed tenant sought a smaller, stair-free home due to a hernia and changes in family circumstances. The proposed tenant also claimed she would struggle to afford her current rent due to an expiring alimony obligation.
The judge ruled that neither party demonstrated an urgent interest, as there was no new or significantly changed situation.
In the subsequent substantive proceedings, the court also found no compelling interest. First, the proposed tenant’s medical condition had remained unchanged for years. She had her hernia when she chose her current home and was aware that her alimony payments were temporary. Second, while it is understandable that the tenants prefer separate bedrooms for their children, this alone does not constitute a compelling interest.
Conclusion
The rulings from the District Court of The Hague provide a counterbalance to the prevailing trend in published decisions where the requirement of a compelling interest is sometimes applied too leniently. Given that landlords’ interests are often undervalued, restrictions on contractual freedom and property rights should only be permitted under exceptional circumstances.
More Information
Do you have questions about this blog or the cases discussed? Feel free to contact me, and I will be happy to assist you.