Investors/landlords take note!

You have a nice building and rent it out, for example to students. This goes well for several years, but at some point you receive a letter from the municipality notifying you of a violation of the zoning plan. For example, there would be too many students living there. Can this be done just like that? What are your obligations?

With some regularity, unsuspecting landlords are written to for failing to comply with rules. This often involves the tenants not complying with the rules in question, but a municipality choosing to write to the landlord (as well).

For example, zoning plans often state that a property may be used for one dwelling or that only four rooms may be rented in a building. You then conclude a rental agreement to that effect and think you are done with that. However, nothing could be further from the truth.

Under the Wabo, as an owner/landlord, you are responsible for ensuring that the property is not used in violation of the zoning plan. Such an issue was also at issue in the Division's ruling of February 7, 2018 (ECLI:NL:RvS:2018:390). The landlord was imposed an order for a penalty payment because the house was occupied by more than two people roomwise. Subsequently, some inspections took place by the municipality and it was found that the dwelling was still occupied by more than two persons and the landlord forfeited penalty payments.

The landlord then claims to have visited the property a number of times, but that, given the tenant's right to privacy, he could not check more.

The Department makes short work of this. The landlord must do everything reasonably within his power to ensure compliance with the charge. Exactly what that means depends on the circumstances of the case, but merely ringing the doorbell a few times a year and inspecting the exterior do not seem adequate.

What are you allowed to do and what are you not allowed to do?

The landlord's core obligation is to make the leased property available to the tenant. This entails that the tenant has a right to undisturbed enjoyment of the premises. This includes the right to privacy. Only if this is necessary to remedy defects or to have the rented property appraised, the landlord has the authority to enter the house. However, even then this will have to be done in consultation with the tenant. Recent case law has reaffirmed that the landlord is authorized to enter a leased property without the tenant's consent only in emergencies (ECLI:NL:RBAMS:2017:7771).

This is difficult to reconcile with the Department's test criterion. After all, given the above, the legal possibilities of the landlord to inspect the leased property are limited. It is therefore important to make clear contractual arrangements in this regard.

In the ROZ's widely used Standard Lease Agreement Residential Building 2017, the accompanying general provisions state that the landlord has the right to enter the leased property - after consultation with the tenant - on weekdays between 8 a.m. and 5:30 p.m. for inspection of the condition of the leased property, for necessary work and for valuations. In short, this is not much more extensive than the possibilities the landlord already has under the law. The parties could therefore include in the lease itself the special provision that the landlord has an additional right to inspect the leased property if he reasonably suspects over-occupancy. Even in that case, inspection without the tenant's consent will not be legally possible, but such a provision would give the landlord tools to keep his finger on the pulse. After all, a tenant of integrity will allow access to the leased property, especially if the landlord is open about his suspicions (and shares with the tenant any notice issued by the municipality).

Incidentally, it is important to note that the tenant also has a responsibility in this regard. By law, the tenant must behave as a good tenant. This obligation is partly motivated by the fact that the lessor cannot supervise what happens ín the leased property. The ROZ standard contract also contains several related obligations for the tenant in its general provisions. For example, the lessee must actually, fully, continuously, properly and personally use the leased property, exclusively in accordance with the designated use. In addition, the tenant must comply with government requirements regarding the use of the rented property, such as the municipal rules on overcrowding. Furthermore, the tenant is not allowed to give all or part of the rented property in use to third parties.

This implies that the tenant will soon be in breach if the leased property is used by third parties without the landlord's knowledge. After all, in that case, the tenant is not complying with his contractual obligations, so there may be a breach of contract. This may provide grounds for the landlord to recover from the tenant any damages he suffers as a result - such as penalties imposed by the municipality. Of course, the question is whether the landlord will be able to recover (part of) his damages from the tenant, especially if the tenant is insolvent. Given this, again, prevention is better than cure. As a landlord, make sure that you have sufficient contractual options to check compliance with municipal regulations.

Quickscan zoning plan

Do you want clarity on whether your building plan fits within the zoning plan? For a fixed price, our specialists will investigate the possibilities. Click here for more information about our Zoning Quickscan.

Rudi Minkhorst, lawyer and partner Environment and Government 

Ciaran O'Connor, attorney at law Rental and real estate