Who’s that girl? – Prohibited subletting and eviction

Recently, we assisted a lessor who was confronted with a subtenant unknown to her. Does this justify termination of the tenancy agreement, and is it possible to obtain eviction of the property in summary proceedings?

Breach of contract

A tenant acts in violation of Article 7:244 of the Dutch Civil Code, as well as most rental agreements and applicable general terms and conditions, if they sublet the rented property to another person without the lessor’s permission (and no longer occupy the property themselves). In most cases, such conduct qualifies as a breach that justifies termination of the tenancy agreement.

In this specific case, it was established that the social housing property was being sublet for five times (!) the rent paid by the main tenant. Although his name did not appear on the sublease agreement and the rent had to be transferred to an unknown bank account, it was undisputed that the main tenant had not lived in the property himself for over a year. The subtenant eventually left voluntarily once it became clear that a large profit had been made at her expense.

Case law

There is case law in which courts have ruled that, in such circumstances, further investigation is required into the exact role of the main tenant. Summary proceedings are not suited for such fact-finding, meaning that a claim may be dismissed by the preliminary relief judge. It may also be debated whether subletting immediately creates an urgent interest justifying eviction; courts have ruled differently on this point.[1]

The disadvantage of initiating substantive proceedings is the considerable time it may take before a final judgment is obtained. Another potential drawback is that, when assessing the claim for termination of the tenancy agreement, a judge may take into account that the main tenant has by then resumed living in the property without issues for some time.

Summary proceedings

In recent years, however, there has been a trend of preliminary relief judges not hesitating to grant eviction claims in anticipation of substantive proceedings where it is sufficiently established that subletting has occurred.

Prohibited subletting may justify eviction of the property in summary proceedings, even in circumstances where it is not entirely clear whether the main tenant was responsible for subletting or otherwise allowing the property to be used by another person.[2] Under legislation such as the Affordable Rent Act (Wet betaalbare huur) and the Good Lessorship Act (Wet goed verhuurderschap), lessors risk substantial administrative fines if overcrowding occurs or if properties are rented out at prices exceeding those permitted under the housing valuation system (WWS). The risk of administrative sanctions can therefore also be taken into account as an argument.[3]

In our client’s case, significant profits were being made by subletting the property through a sublease arrangement at an exorbitant rent. The lessor was confronted with unknown occupants while there was a long waiting list of prospective tenants. All things considered, the preliminary relief judge found it sufficiently likely that the court in substantive proceedings would terminate the tenancy agreement and ordered the main tenant to vacate the property. After some threats of an appeal and enforcement proceedings, the tenant ultimately left for warmer climates.

Conclusion

It is possible to take action against prohibited subletting through summary proceedings. Although eviction will be the primary objective in most cases, it is also possible in summary proceedings to claim (an advance on) the surrender of profits. In certain circumstances, a lessor may also have an urgent interest in such a claim, as it provides an additional and effective tool in the fight against subletting.[4]

More information

Do you have questions about prohibited subletting or the protection of (sub)tenants? Please feel free to contact me or one of the other tenancy specialists at GMW advocaten.

[1] District Court Rotterdam, 8 February 2023, ECLI:NL:RBROT:2023:1583, para. 4.4
[2] District Court Amsterdam, 20 September 2024, ECLI:NL:RBAMS:2024:5922, para. 4.1
[3] District Court Rotterdam, 30 August 2022, ECLI:NL:RBROT:2022:7340, para. 4.8
[4] Court of Appeal Amsterdam, 9 September 2008, ECLI:NL:GHAMS:2008:BF1347, para. 4.10 (upheld by Supreme Court 18 June 2010, ECLI:NL:HR:2010:BM0893, para. 3.3)