Nuisance caused by tenants

We noticed in our real estate practice that the number of questions about nuisance caused by tenants increased significantly. This is logical, as many employees were simultaneously forced to transform their homes into home offices. Nuisance from neighbours was particularly noticeable. At the same time, courts were reluctant to terminate tenancy agreements due to nuisance. Especially at the beginning of the corona crisis; in fact, for a short period there were no evictions at all.

In this blog, we take a closer look at various forms of tenant nuisance. We also explain how a tenancy agreement can be terminated due to nuisance.

A tenant may not cause unlawful nuisance

Article 7:213 of the Dutch Civil Code (Burgerlijk Wetboek) stipulates that the tenant is obliged to good behaviour. This is a very broad formulation and one that does not offer much in the way of guidance. Fortunately, most tenancy agreements and general terms and conditions contain clear prohibitions and requirements. The most recent model of the Real Estate Council of the Netherlands (ROZ) stipulates that tenants may not cause nuisance. Tenants must also ensure that third parties or animals present on the premises may not do so either.

It is also preferable to have more specific provisions included in the tenancy agreement. For example, a ban on illegal prostitution, hemp cultivation or business activities. In addition, predetermined penalty amounts with maximums can be included in the tenancy agreement to penalise nuisance. Is a dwelling a part of a larger complex or a special living environment? Then it is important to mention this in the tenancy agreement. This involves including additional living and use rules in a tenancy agreement. Especially for a dwelling with a courtyard or a senior citizens’ complex.

In general, a landlord is obliged to take action against nuisance caused by tenants. Particularly if the living conditions of other tenants are affected. Whether violation of these rules can lead to termination of the tenancy agreement depends very much on the duration, nature and severity of the violation.

Nuisance caused by tenants due to the use of a dwelling for work purposes

Most tenancy agreements stipulate that a rented residential property may only be used as a home. Even before the corona measures, however, it was not unusual for a dwelling to also be used as a place of work, for example for remote work or self-employed work. According to established case law, this is allowed in principle as long as use as a dwelling predominates and the business use does not lead to danger or nuisance.

Whether action can successfully be taken against the partial use of a dwelling as a place of work depends very much on the nature of the business and the degree of nuisance.

Noise nuisance

The most common complaint is that tenants cause excessive noise levels. At the same time, it is precisely this form of nuisance that is difficult to prove. And it is also highly subjective in nature. In addition, courts take into account that the Netherlands is densely populated. And that a certain degree of nuisance is inherent in this. According to established case law, as a rule occasional nuisance such as a party or a short-term renovation is acceptable. However, night rest must be taken into account. Therefore, excessive noise levels between 22:00 in the evening and 08:00 in the morning must be limited.[1]

[1] Hof ’s-Gravenhage 2 augustus 2011, ECLI:NL:GHSGR:2011:BR6430.

Document the nuisance

The landlord is required to prove the existence of unlawful and structural nuisance. It is therefore important to document the nuisance accurately and, where possible, to collect various witness statements. Another option is to have a noise expert take measurements to determine whether public law noise standards are being violated. Please note that there is no unambiguous legal framework for noise standards with regard to neighbourhood nuisance. For example, in the case of nuisance caused by barking dogs, the standards that would normally apply to the operation of a dog shelter were held to apply.[2] The question is whether a standard that applies to operating a dog business lends itself to a situation where someone lives right next to barking dogs.

[2] Hof Arnhem-Leeuwarden 18 februari 2020, ECLI:NL:GHARL:2020:1323.

In summary, it is important to present a clear and comprehensive case file. Serious and structural noise nuisance will first have to be shown to exist. The court will then proceed to terminate the tenancy agreement. Courts are more likely to grant such a claim if it is proven that previous requests by the landlord to stop the nuisance have had no or insufficient effect.[3]

[3] Hof ’s-Hertogenbosch 5 februari 2013, ECLI:NL:GHSHE:2013:BZ0900.

Drug-related nuisances and nuisances caused by threats and violence

Courts are much stricter when it comes to nuisance caused by operating a hemp nursery. The starting point is that operating a hemp farm constitutes a serious breach of the tenancy obligations that, in principle, justifies termination of the tenancy agreement. The reason for this is that it leads to an increased risk of fire, damage and criminal activity. It is preferable to ask for the police report, and also to find out the extent of the stocks of hemp and the associated income that has been generated.

Nuisance caused by violent incidents and threats requires a longer period of structural nuisance. Examples include abusive behaviour, failure to control an aggressive dog, or threats.[4] Dealing soft drugs from a rental property may also lead to termination of the tenancy agreement, even if the mother of the perpetrator has a clear interest in continuing the tenancy agreement due to the scarcity of housing and her sick daughter.[5]

[4] Hof Arnhem-Leeuwarden 22 oktober 2019, ECLI:NL:GHARL:2019:8846.

[5] Hof Arnhem-Leeuwarden 16 juli 2013, ECLI:NL:GHARL:2013:5252.

Courts will generally take the background and circumstances of the case into account. For example, a claim for termination of the tenancy agreement due to the presence of cocaine and fireworks was rejected. The perpetrator no longer lived at home and his mother had never caused any nuisance.[6]

[6] Rb. Rotterdam 15 februari 2019, ECLI:NL:RBROT:2019:1914.

Nuisance from illegal prostitution

In principle, a dwelling may not be used for business purposes without the landlord’s permission. This is even more likely to be the case if the dwelling is being used for illegal prostitution. The municipality is cracking down on this. Because of both the reduced quality of life and the risk of forced prostitution or even human trafficking. Prostitution also causes inconvenience to local residents, which is why courts assess such an offence strictly.

For example, a tenant gave a third party her house keys while she was away. This third party operated an illegal sex establishment during her absence. The tenant was consequently sentenced to eviction because the illegal activities were at her expense and risk.[7]

[7] Rb. Amsterdam 2 juli 2020, ECLI:NL:RBAMS:2020:3260.

Nuisance from waste and neglect

When assessing nuisance, courts will take into account the quality of life in the vicinity of the rented property. Litter, overdue maintenance and things left lying around the rented property lead to nuisance and an unpleasant living environment. For example, a family continued to cause nuisance despite several warnings and existing agreements: “several uninsured passenger cars in front of the door, three scooters (…) as well as a jerry can and various scooter parts in the back yard, two scooters in the car park in front of the house, three scooters on the pavement in front of the door (…), and bulky rubbish in the front yard.”[8] The Court therefore ruled that the termination of the tenancy agreement was justified.

[8] Hof Arnhem-Leeuwarden 30 juli 2013, ECLI:NL:GHARL:2013:5656.

The Court of Appeal reached the same conclusion in the case of a tenant who had collected so many items and had piled them up in her dwelling that the rented property was practically impassable. Because the front and back yards were also completely overgrown, the court considered that there was a high risk of fire and granted the requested termination of the tenancy agreement.[9]

[9] Hof Arnhem-Leeuwarden 26 februari 2013, ECLI:NL:GHARL:2013:BZ2350.

Rental protection

Tenants enjoy a great deal of security of tenure, and losing one’s home has far-reaching consequences. A tenancy agreement can only be terminated if the shortcoming is so serious that it justifies the termination of the tenancy agreement. Courts will take into account the seriousness, nature and duration of the breach. As well as the personal circumstances of those involved.

In 2018, former justice of the Supreme Court mr. F.B. Bakels, in his new capacity as a judge at the Amsterdam Court, submitted preliminary questions to the Supreme Court. In essence, these questions were whether, when testing for compliance with Article 6:265 of the Dutch Civil Code (Burgerlijk Wetboek), additional conditions should be imposed on the termination of tenancy agreements relating to social housing. In other words, do this group of tenants enjoy even more rent protection? The Supreme Court ruled that Article 6:265 of the Dutch Civil Code (Burgerlijk Wetboek) also offers sufficient protection and scope for customisation without extra conditions. For all types of tenancy agreements, only a sufficiently serious shortcoming justifies termination of the agreement.[10]

[10] HR 28 september 2018, ECLI:NL:HR:2018:1810.

Nuisance: preliminary relief proceedings or proceedings on the merits?

During proceedings, courts will decide whether the tenancy agreement will be terminated and the rented property vacated. This decision is based on all the evidence, facts and circumstances.  Without a court order, it is not possible to evict tenants from a rented property. The advantage of proceedings on the merits is that the court can call in experts. For example, the court can appoint a sound expert. Or order an inspection of the rented property to assess the situation. The disadvantage is that a proceedings may take months or even years, while the nuisance may continue.

The alternative is to claim the eviction of the leased property in summary proceedings. This is only possible in urgent cases. When it is not possible to await the ruling in proceedings on the merits. Preliminary relief proceedings take considerably less time, as a result of which the nuisance can be ended much sooner. The disadvantage is that a court will not conduct an extensive investigation in preliminary relief proceedings. It also takes extra account of the fact that an eviction will not be easily reversed. Moreover, a landlord will have to prove that there is an urgent interest.

Which of these proceedings is preferred strongly depends on the nature and seriousness of the nuisance. As well as the available evidence.

Conclusion

Nuisance caused by tenants comes in many shapes and sizes. In all cases, courts will take into account the far-reaching consequences of termination and eviction for tenants. It is therefore important to keep a comprehensive and documented case file from the outset. We have the following tips:

• Include explicit prohibitions in the tenancy agreement and, where applicable, mention the special nature of the leased property;
• After reports of nuisance, hold the tenant in default in writing;
• Collect witness statements or other evidence of the nuisance. Such as a police report or statements from the community police officer;
• An expert report can be a convincing form of evidence of noise or odour nuisance;
• Record interim agreements with the tenant regarding the nuisance in writing. For example, in an addendum to the tenancy agreement or a last chance agreement.

GMW lawyers can assist landlords to compile a case file, hold the tenant in default and conduct legal proceedings to end the nuisance. Do you have any questions about nuisance caused by tenants? Please do not hesitate to contact us.