Hiding a family in a farm may constitute criminal offences, but it is not yet a ground for dissolution of a lease. After all, a bad person does not make a bad tenant. The fact that the tenant has improperly renovated, does not pay the rent and has used the rented property in violation of its intended purpose, does provide grounds for dissolution.

Facts

Since 2010, Gerrit Jan van D. has been renting a farm in Ruinerwold, where he lives in total seclusion with his six children. After one of the children leaves the farm, the police terminate the occupancy in October 2019. The lessor then demands the termination of the lease. The tenant would have failed by keeping his family secretly hidden in the farm, by living in a space that is not intended for that purpose, by improperly renovating the farm and by not paying the rent (on time). In addition, the landlord is claiming compensation.

The tenant defends himself and states as a counterclaim that he does not owe rent from 1 October 2019 until the farm is made available to the landlord. The lessor is in default of creditors by not making the leased property available to the lessee. Nevertheless, the tenant has paid the rent until July 2020 under protest. The subdistrict court allowed the landlord's claims and rejected the tenant's claim. The court comes to the same decision, but reasons differently.

Rating

In appeal, only the decision of the sub-district court on the landlord's claims is under discussion. The lessee has not raised any complaints against the rejection of his own claim by the subdistrict court. Nor has the tenant demanded, in either a summons on appeal or in a statement of appeal, that his claim be allowed after all. The Court of Appeal thus only assesses whether the alleged shortcomings justify dissolution of the lease and whether the damages claimed can be awarded.

Good tenancy

The lessor argues that the lessee is in violation of art. 7:213 BW acted. Hiding his family in the rented accommodation would not make him a 'good tenant' because he has behaved so socially indecently and has been guilty of criminal offences. The court does not follow the landlord. By committing criminal offenses in the rented property, art. 7:213 BW not yet violated. In other words: a bad person does not make a bad tenant.

Good tenancy concerns the act or omission in relation to the tenancy agreement. The tenant must behave as a tenant according to standards of reasonableness and social care, partly in view of the interests of the landlord and the third parties involved in the lease. For example, the tenant must guard against (the infliction of) damage to the rented object and to the landlord, and he must prevent damage to the environment (due to nuisance) as much as possible.

Faulty renovation

It is assumed, however, that the tenant has renovated the rented property improperly and without the required permits, and that he has lived in an unsuitable space. As a result, the insurer has suspended the home insurance. The municipality has also imposed a penalty order.

Although the tenant has referred to the advice of the objections committee to 'nullify' that penalty order, the tenant has not argued anything about the defects in that penalty order. For example, it is unclear whether there are formal defects in the decision, whether, for example, the beneficiary period is too short, or whether the defects identified do not occur. During the oral hearing, the tenant did note that a number of defects identified by the municipality were correctly established. It is thus established that the refurbishments do not comply with the building regulations, that the necessary permits have not been applied for, and that the refurbishments have not been carried out “properly and in every way responsible”, as prescribed in the lease.

Rent arrears

The rent was paid late and since July 2020 there is no payment at all. Insofar as it is stated that the tenant is unable to pay because of the detention, the court notes that the detention is within the tenant's sphere of risk. The tenant has also insufficiently substantiated that the landlord did not want to pass on his account number to his lawyer, and that for that reason payment could not be made.

The tenant also wrongly invokes a right of suspension. Although the leased property was not made available to the tenant, the reason for this is the suspension of the home insurance and the decision of the municipality that the leased property may not be used. This is due to the adjustments made to the leased property by the tenant. The lessor was therefore allowed to close the leased property. In addition, the tenant could not use the rented property because he and his partner were detained at the time. The tenant's children were housed elsewhere.

Although the rented property has not been used by the tenant since October 2019, the tenant did not lay claim to the rented property until March 25, 2020. At that time there was already talk of rent arrears of four months. In his claim, the tenant did not indicate that he was willing to undo the violations established by the municipality. Due to the detention, the tenant was also probably unable to do so until October 2020. Thus, the lessor could not fail to fulfill its obligations by refusing the lessee access to the leased property. Instead, the tenant has defaulted by also leaving the rent unpaid as of July 2020.

Justification for dissolution

In assessing whether a shortcoming in the performance of a lease is of sufficient weight to justify its dissolution, all the circumstances of the case are important. The interests of the tenant in avoiding the consequences of dissolution are also taken into account.

The deficiencies identified are serious. These affect the core of this lease and have far-reaching consequences for the lessor. The interests of the tenant in maintaining the lease do not outweigh this. All the more so now that the tenant has indicated that he, at least his wife and children, probably do not want to return. According to the tenant, although he has invested heavily in the leased property, the financial interest is insufficient, according to the court. Apart from the fact that it has not been made clear how the tenant can bring the leased property in line with the requirements set by the municipality. Dissolution is therefore admissible.

Compensation

The claim for compensation for damage suffered as a result of the dissolution is not adequate. The Court of Appeal therefore reads that compensation for damage suffered as a result of the alleged shortcomings is claimed. This relates to the costs of security and the costs of spokespersons. Compensation for the security damage, to be further determined by the state, is awarded due to the shortcomings regarding the renovation and the incorrect use of the leased property. This damage can be attributed to the tenant. The damage to the spokesperson arose as a result of the disclosure of the hidden accommodation, not in connection with the faulty renovation or the conflicting use. Reimbursement of the costs of spokesperson is therefore not awarded.

Decision

The court partially affirms the verdict, while improving the grounds, and overturns the verdict with regard to the award of damages for spokespersons and determines that costs of security are further determined by state and settled according to the law.

Arnhem-Leeuwarden Court of Appeal 17 May 2022, ECLI:NL:GHARL:2022:3915