Harnessing the power of the burden of proof in tenancy law (BPL/X.) permalink

29 October 2016 | tenancy law, damages, burden of proof

Tenants and former tenants are under Dutch law well protected against claims due to damage inflicted on a rented house or apartment. To that end the law provides for a presumption that at the end of the tenancy the property is in the same condition as it was at the beginning, unless at the start a report on the condition was made and signed by the tenant and the landlord (article 7:224 Civil Code). In other words: without a report the landlord has to prove that the property was damaged by the tenant. In addition the landlord has to provide proof of the extent of the damages, for example the costs of repair.

Ten Hoeve & Van der Horst Incasso VOF represented a tenant in a related case where the final judgement was handed down on 6 October 2016. The landlord, the pension fund Bedrijfspensioenfonds voor de Landbouw, claimed over € 9000 in damages to the property, interest and debt collection fees. In this case a report was indeed made up at the beginning of the tenancy. The tenant however argued that the report was not comprehensive enough to be in line with article 7:224 CC, relying on recent case law (Appeals Court 's‐Hertogenbosch 24 February 2015, ECLI:NL:GHSHE:2015:601). In the present case the court considered that the report was indeed vague, only containing statements that the condition of items was 'good' or 'sufficient'. The landlord was therefor unable to rely on the report. In addition, the landlord failed to prove that damages were inflicted by X and/or what the extent of those damages were. In an earlier judgement the court further considered that the landlord had not followed proper debt collection procedures. The court subsequently denied the landlord's claims.

Judgements: District court Oost-Brabant 6 October 2016, 4314342 CV EXPL 15-8131
District court Oost-Brabant 25 February 2016, 4314342 CV EXPL 15-8131