The housing corporation has been informed by the police that its tenant has a false employer's statement, salary specification and annual statement, in order to obtain a rental property. She no longer has the submitted income data, which she destroyed for privacy reasons. Out of court, the tenant refuses to provide the income data again. Now that the landlord is in need of proof, while the tenant can easily request this information, the tenant is obliged to provide proof of her income.

Facts

Candidate tenants had to meet an income requirement before allocating a home. To this end, the defendants provided information, after which the house was assigned to them. Months later, the housing association was informed by the police about a fraud investigation. It has been found that false employer statements, salary specifications and annual statements have been drawn up in order to qualify for rental housing. The documents of the defendants were also found in this investigation. The housing association has therefore asked these tenants to provide their income data again. One of them indicated that he no longer had this information. The housing association has therefore annulled the lease extrajudicially on the grounds of error, deception or fraud. Defendants did not voluntarily leave the rented property, after which a summons was issued.

Claim

The housing corporation is claiming a declaratory judgment that the lease has been annulled extrajudicially. Eviction is also being requested. In the alternative, the housing association is claiming destruction in court. The housing corporation invokes art. 6:228 BW and on art. 3:44 paragraph 1 and paragraph 3 of the Dutch Civil Code. She offered the lease on the basis of false information. If she had the correct income data, it would not have been closed. The housing corporation is only in need of proof, now that it has destroyed the previously submitted data in accordance with the privacy legislation (AVG).

Defense

The allegedly fraudulent tenant states that the documents submitted do not originate from her. These have not been signed by her, she does not know these companies, has never worked there and has not received any wages from them. She meets the income requirements because her husband has sufficient income. She also has a child and therefore has an interest in preserving the home. Furthermore, there is no causal link between the alleged error or deception and the conclusion of the lease. The housing association states that there is error, deception or deception based on suspicions, but it must also prove that the tenant has provided incorrect information. It has not become apparent that the housing association had to destroy the income data on the basis of the General Data Protection Regulation.

Rating

The housing association has a burden of proof. Whether the housing association had to destroy the income data according to the General Data Protection Regulation is left open. It no longer has this information and is therefore in need of proof. Although the housing corporation bases its statements on a presumption, it makes this concrete with other documents. The allegedly fraudulent tenant is pre-eminently familiar with her own income. She can easily obtain this information by requesting it from her (former) employer or the tax authorities. She can also easily demonstrate salary payments with bank statements. In the context of its defence, the tenant is thus subject to an increased obligation to state and to state reasons. The housing association therefore has the burden of proof, but the tenant may be required to provide factual information to substantiate its dispute in order to provide the housing association with points of reference for any evidence it may provide. cf. Amsterdam Court 5 October 2021, ECLI:NL:GHAMS:2021:2998. The tenant declares that he is still willing to do so.

Rb. Amsterdam 17 May 2022, ECLI:NL:RBAMS:2022:2636 (publication date: 24 June 2022).

This article originally appeared in Sdu OpMaat Huurrecht+.