How far does the (administrative law) duty for a landlord to check that no illegal activity is taking place in his rented premises? The administrative courts are strict in this regard. Indeed, a landlord is expected to make a far-reaching effort to check the actual use. If a landlord does not make that effort sufficiently, the judge invariably rules that a sanction measure, a fine or even a temporary closure, is rightly imposed.
Nevertheless, a sanction is not always justified, as described in an earlier blog. In that case, the landlord had "neatly" complied with the municipality's inspection advice. However, such advice is not always there.
An important question in practice is when, in general, a landlord exercises sufficient control over the rental property in order to avoid (administrative) sanctions. An Aug. 21 ruling provides some practical guidance.
What was going on?
These proceedings concern an apartment complex in The Hague. During an inspection in one of the apartments in the complex, a hemp nursery was discovered. The municipality (the college) subsequently imposed a fine of €5,000.00 on the landlord, also the owner and manager, of the apartment complex.
The College is of the opinion that the observed violation is attributable to the landlord. To this end, the college argues that an owner of a property he rents is required to inform himself to a certain extent about the use of the rented property. According to the college, the landlord did not do that sufficiently in this situation. The landlord disagrees. According to him, he could not and did not need to know that a hemp farm was present in the property.
Ultimately, the case goes to the Division, which must decide whether the landlord has fulfilled his obligations.
Landlord may also be over violator
The Division begins its judgment by indicating that a landlord can also be sued for illegal activity. In the first instance, the person who actually physically performed the prohibited act can be sued. But also the person who did not actually commit the violation himself, but to whom an act can be attributed, can be held responsible for the violation and can face a sanction.
The owner of a property who leases it is expected, to some extent, to inform himself about the use being made of the leased property. In order not to be held responsible for unlawful use of the leased premises, the owner must make it plausible that he did not know and could not have known that the premises were being so used.
In order to inform oneself to some extent about the use of a rental property, it is incumbent upon the landlord to supervise the use of the property in some concrete way.
But when is that oversight sufficient?
Careful landlord
In this case, the Division carefully runs through what efforts the landlord made for supervision. In doing so, it lists the following circumstances:
- When entering into the lease, the landlord was sufficiently satisfied that the tenant would behave as a good tenant;
- Adequate records were kept including an employer's statement and tenant's pay stubs;
- The records show that there was never any rent arrears;
- The lease agreement states that the tenant is not allowed to grow hemp and that in case of emergency, the landlord is entitled to enter the leased property without permission;
- Technical staff from the landlord is regularly present in the apartment complex, and a technical staff member was also present in the apartment after the lease began in connection with an inspection of the water heater. This employee did not observe anything of hemp cultivation;
- A janitor is present in the building on a weekly basis;
- All landlord personnel were instructed to be extra alert for signs that might indicate a hemp farm. None of them detected anything.
All these efforts together bring the Division to the conclusion that the landlord could not have known that commercial hemp cultivation was taking place in the residence. Therefore, the final verdict of the Division is that the Board was not allowed to impose an administrative fine on the landlord.
Conclusion
The administrative law judge is clear that property owners have an obligation to make frequent and thorough inspections of the properties they rent out. That obligation sometimes goes quite far. This ruling provides good insight into when sufficient efforts are made by a landlord. And thus in what way an (administrative) sanction can be avoided.
