20 May 2024
Most tenancy agreements for residential accommodation include the requirement that the accommodation is the primary residence.
But what happens if there is contractual joint tenancy and one tenant does not have his or her primary residence in the accommodation? Could this lead to termination of the tenancy agreement by the landlord?
Please note that this does not concern a situation where the tenants request that one of them be released from the tenancy agreement, as referred to in Article 7:267(7) of the Dutch Civil Code (Burgerlijk Wetboek). The court then determines which of the joint tenants has the greatest interest in the tenancy agreement and which does not, and the landlord must accept this ruling. The Supreme Court ruled in ECLI:NL:HR:2021:1964 that this also applies to contractual joint tenants.
In the absence of a statutory regulation on the mandatory requirement of that the accommodation serve as the primary place of residence, the tenancy agreement is leading. The tenancy agreement almost always states that it is mandatory that the accommodation is the primary place of residence, but breach of this requirement by one contractual joint tenant does not easily lead to termination of the tenancy agreement.
Article 22.3 of the General Provisions of the most commonly used model of the ROZ Real Estate Council of the Netherlands’s (Raad voor Onroerende Zaken) states: “A person who has entered into and signed the tenancy agreement with the landlord together with one or more others, without legal joint tenancy, does not lose his tenancy by permanently leaving the accommodation. Even then, he remains jointly and severally liable for the obligations under the tenancy agreement. A contractual joint tenant can only terminate the tenancy agreement by giving notice together with the other tenant(s).”
In ECLI:NL:RBROT:2022:2736, the landlord claimed termination of the tenancy agreement and eviction because one of the contractual joint tenants had permanently left for abroad. The subdistrict court dismissed the claim. The court interpreted the parties’ intention in Article 22.3 to be that, while both tenants are jointly and severally liable for the obligations under the tenancy agreement, they are specifically not liable for maintaining the primary place of residence. Otherwise, Article 22.3 would be a meaningless provision. The tenancy agreement therefore continued to exist.
The ruling could have some awkward consequences for landlords. For example, in the case where, of two contractual joint tenants, the pleasant tenant leaves and the problematic tenant remains. Or in the situation where a housing association allocates a scarce family home to two contractual joint tenants with children, and one tenant leaves with the children.
For contractual joint tenants, the ruling obviously offers opportunities. They need not worry that the entire tenancy agreement will be terminated if one of the contractual tenants leaves. However, the departing tenant should be aware that, in principle, the landlord can still continue to demand payment of the full rent from him or her.
A good description of the contractual provisions is essential if the landlord wants to hold both contractual joint tenants to the primary place of residence requirement. In such a case, the court can then assess whether the interest of the landlord or that of the tenant(s) should take precedence.
Are you, as a landlord or tenant, confronted with issues of contractual joint tenancy? Please do not hesitate to contact us.
