Can rogue property owners be tackled with an administrative fine?

On January 1, 2015, the Housing Act will be amended and the administrative fine will be introduced into this law. The purpose of the administrative fine is to make it easier for municipalities to act against "rogue property owners. But is this really a necessary addition to the existing enforcement options or will practice show that the fine will mainly be used (too quickly)?

Current enforcement capabilities

Rules and regulations apply in the Netherlands for the construction, use and condition of structures, among other things. In practice, this means in short that it is prohibited to act contrary to regulations and (minimum) requirements from the Building Decree 2012 and the Regulations Building Decree 2012. Examples include (minimum) requirements regarding the condition of a building, such as the strength of the construction, fire resistance, escape routes, ventilation, presence of fire extinguishers and smoke detectors, overcrowding, etc. Under Article 1b of the Housing Act, it is forbidden to act in violation of these (minimum) requirements.

If a structure does not meet the set (minimum) requirements, the competent authority, usually the Municipal Executive, is authorized to take enforcement action. Current legislation offers the possibility of imposing an order under penalty or administrative coercion on a violator to still take the measures necessary to comply with the set (minimum) requirements. If there is a threat to livability or a danger to health and safety, under circumstances, depending on the extent of the threat or danger, the competent authority has the power to close the building in question and take it into its own management.

Practical concerns of current enforcement options: rogue property owners cannot be dealt with (adequately)

The initiative to introduce the administrative fine came from the municipality of Rotterdam. This is because the municipality of Rotterdam is struggling with serious nuisance from (rogue) property owners. According to the municipality of Rotterdam, there is a certain group of (rogue) property owners who seem to continuously violate regulations of the Housing Act, the Housing Act and the Opium Act on purpose. The Municipality of Rotterdam indicates that fire safety and the living environment (health) in those premises are continuously under pressure. Mold, lack of fire alarms, dirt dumped daily in gardens are examples.

According to the municipality, the existing instruments in the Housing Act offer insufficient possibilities to act against these property owners. This is because the management takeover instrument can only be used in combination with the closure instrument. In addition, the current instruments basically relate to buildings rather than to the behavior of the owners as such, while they are the ones who can prevent (consistent) violations.

Currently, the authority itself cannot take punitive action. Municipalities are required under the current regulations, apart from the power to close the building in question and take it into their own management, to always offer the property owner a remedy, even if it is the 10th time the same regulations have been violated.

The introduction of the administrative fine as of Jan. 1, 2015

The legislator is of the opinion that, in addition to the current enforcement instruments, an administrative fine can offer a solution to effectively deal with building owners who repeatedly and deliberately let their buildings deteriorate. In such cases, the administrative fine is a quick and decisive tool, which also has a preventive effect.

The fine can be imposed for all violations covered by Section 1b of the Housing Act, i.e. mainly the regulations in the 2012 Building Code and the 2012 Building Code Regulations. In principle, anyone can be considered a violator, whether owners, occupants/users or contractors/construction parties. An administrative fine can be imposed on each.

However, there is a (single) restriction on being able to impose an administrative fine. Recovery remains the starting point. The imposition of an administrative fine is only possible if the same violation or a similar violation has occurred previously.

Thus, the municipality will also always have to give an owner, user or builder a chance to repair the damage caused or created in the case of a first offense, by means of a warning or an administrative order or a penalty payment order.

From a second (the same or similar) violation, an administrative fine, which can be up to €8,100.00 per observed violation, can then be imposed.

Obviously, the idea behind the introduction of the administrative fine is understandable, yet practice will have to show whether the imposition of this sanction will be limited only to 'rogue property owners'. Even 'well-intentioned repeat offenders' may be unpleasantly surprised with this sanction in the event of negligence. The future will therefore have to show whether this instrument is not used (too) quickly.