28 August 2024
Recently, six important rulings were published by the Administrative Jurisdiction Division of the Council of State, clarifying when administrative enforcement is possible against a landlord.
It happens frequently that tenants use the property illegally for cannabis cultivation, room rentals, or Airbnb rentals. As a result, the municipal executive (college van B&W) imposes an administrative fine on the owner/landlord, as they are more often known to the municipality than the tenant and are easier to hold accountable. The legal basis for this is the landlord’s breach of duty of care. But is this justified?
In 2023 the Administrative Jurisdiction Division of the Council of State determined that a landlord’s breach of duty of care cannot be assumed lightly. It is necessary, in any case, that the landlord had the ability to control the illegal behaviour and that there was acceptance of this behaviour or similar behaviour. The municipal executive (college van B&W) must be able to prove this. If these conditions are not met, the decision to enforce administrative measures cannot be upheld.
The concept of control requires little explanation; it is almost always within the landlord’s power to set conditions on the use of a property, specifically to prevent any mis-use. However, when is the behaviour of the tenant accepted? On January 24, 2024, the Administrative Jurisdiction Division ruled on this matter in six different cases.
On January 24, 2024, the Administrative Jurisdiction Division of the Council of State elaborated on the concept of ‘acceptance’ in six different rulings:
1. In ECLI:NL:RVS:2024:266 there was no acceptance of the behaviour of the tenant by the landlord. The tenant had illegally subleased the entire apartment to tourists. The lease agreement prohibited subletting, and it also stipulated that rental to tourists was only permitted within the municipality’s regulations. Additionally, the landlord received proof from the tenant of their registration at the address, and there were no other indications to the landlord that the apartment was being illegally rented to tourists. Once the landlord became aware of the illegal rental, he immediately took action against his tenants. He did not additionally search the internet to see if and how the apartment was listed on tourist websites, but according to the Division, this did not mean that there was any acceptance of the behaviour of the tenant by the landlord under the given circumstances.
2. In ECLI:NL:RVS:2024:267 there was no acceptance of the behaviour of the tenant by the landlord. The tenant had illegally subdivided and subleased the apartment, in addition to personal use, leading to overcrowding. However, the landlord had purchased the property in a rented state through a professional real estate company, which handled the entire purchase and communication. The real estate company acted diligently in this regard. After the initial discovery of the violation, the landlord did not immediately intervene. However, this was not held against her by the Administrative Jurisdiction Division, as the real estate company acknowledged during the hearing that they had made a mistake, and therefore the landlord was not aware of the violation. As a result, the real estate company was fined for the violation and has paid the fine.
3. In ECLI:NL:RVS:2024:268 there was acceptance of the behaviour of the tenant by the landlord. The apartment was rented to a family but was illegally used for prostitution. The landlord could not prove that he had hired a real estate agent for the rental, and he provided contradictory statements about whether he had monitored the property or not. He was also unable to show a lease agreement or evidence of (cash) rent payments, and despite claiming that he found a stranger, not the family he rented the apartment to, during an inspection, he had not conducted any investigation into the registration at the address.
4. In ECLI:NL:RVS:2024:269, there was no acceptance of the behaviour of the tenant by the landlord. The tenant had rented out the apartment via Airbnb. The municipal executive (college van B&W) believed there was acceptance by the landlord because subletting was permitted in the lease agreement, and no inspections had been carried out even though the lease agreement provided the possibility for such inspections every six months. However, the given permission did not pertain to changing the use of the property, as the tenant had now done, and less than six months had passed since the start of the lease. According to the Administrative Jurisdiction Division, the landlord’s failure to check whether the tenant was registered at the address was not sufficient to conclude that the landlord had accepted the violation.
5. In ECLI:NL:RVS:2024:270, there was no acceptance of the behaviour of the tenant by the landlord. The tenant had used the apartment for cannabis cultivation. However, there were no specific circumstances that would have made the landlord suspect the illegal use. The fraud specialist from ‘Stedin Netbeheer’ stated that the discovered plants were approximately 30 days old. This was consistent with the landlord’s statement that he had not observed anything suspicious during a previous inspection.
6. In ECLI:NL:RVS:2024:271, there was no acceptance of the behaviour of the tenant by the landlord. The tenant had illegally subdivided and subleased the apartment. Although the municipality had conducted an inspection following a report, the landlord was not aware of this at the time. Furthermore, there were no visible signs in the apartment that would have indicated the need to suspect the illegal subdivision.
The rulings provide a clear insight into the thinking of the Administrative Jurisdiction Division and show that a landlord who acts diligently and proactively, generally has no reason to fear administrative enforcement.
Are you, as an owner/landlord, facing administrative enforcement yourself? And would you like advice? Please feel free to contact us.
