Cracking: prevent and remedy!

It regularly happens that real estate is vacant for a period of time before the owner proceeds to sell or redevelop. During this time of vacancy, properties are quite often squatted. Squatting is the occupation of an immovable property, such as land or a building, without the owner's permission.

Tips against cracking

With squatting, the adage: "prevention is better than cure. All the more so because eviction through legal proceedings involves time and money. Think attorney fees, bailiff fees and court costs.

One way to prevent a vacant property from being squatted is to rent it out under a user agreement. This is also referred to as an "anti-squatting agreement. A user agreement is then concluded with the occupants, allowing them to stay in the property without paying rent. The legal protection provisions for tenants do not apply in the case of anti-squatting.

Temporary rental under the Leegstandwet in the case of residential property is also an option. In this way, the time until, for example, the property is sold can be bridged.

Should a user agreement, or leasing under the Leegstands Act not be possible, it is advisable to properly lock and secure the property.

Cracked anyway? Be quick about it!

If the owner of a property finds out that the vacant property is squatted, he should act quickly. Since the introduction of the Squatting and Vacancy Act in 2010, squatting is a crime (see Article 138a of the Penal Code). Squatters risk a one-year prison sentence. The public prosecutor can evict squatters on the basis of this legal provision.

However, the prosecution will only act if the squatters have not yet obtained a "right to house". The right to house is included in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). Squatters can invoke the "right to house" if there is actual occupation. The Supreme Court ruled in a 2013 ruling that there is no question of "actual occupation" yet if squatters have only been in the property for seven hours (see Supreme Court May 28, 2013, ECLI:NL:HR:2013:CA0793). If there is actual occupancy, the owner of a squatted property will first have to start legal proceedings to get eviction done.

For this reason, too, it is wise to properly secure vacant properties. That way, as little time as possible is lost and the police can be notified quickly.

Eviction by court

The court will weigh interests based on the circumstances of the case when dealing with the interlocutory appeal. On one side is the property right of the property owner. The squatters are infringing on this right by gaining access to the vacant property. On the other side is the squatters' possible right to house.

Recently, my colleague Mr . L.A. Witten assisted a property owner who was confronted with squatters. The District Court of Gelderland ruled that the interest of the landlord outweighed the interest of the squatters. This was because the premises were not suitable for habitation and the property owner was confronted with public enforcement. After all, the premises did not have a residential zoning on them (Gelderland District Court April 10, 2019, ECLI:NL:RBGEL:2019:1643).

The court will also consider whether the owner has an urgent interest in the eviction. If there are concrete plans, a dangerous situation, or if there is a conflict with public law regulations, there is usually urgency.

If the court rules that the property owner's right to property is paramount, it sets an eviction deadline. The squatters are then given a period of time to leave voluntarily. If they do not do so, the owner can call in a bailiff. The bailiff can then work with the police to evict the squatters.

Advice on cracking

Try to prevent the squatting of vacant properties. This will prevent costs that cannot be recovered from the squatters. You can prevent this for example by squatting or (temporary) renting. If this is not possible, good security is wise. If you suspect squatting, call the police as soon as possible. The police can evict the squatters if there is no actual occupation. If there is, you will have to start legal proceedings to evict the squatters. The court will then weigh the interests. Usually, the owner's right to property will prevail, but in exceptional cases the squatters may be allowed to stay. Prevention is better than cure!