You are here

No Eviction Of Residential Guidance Due To Insufficient Warning About Nuisance

Defendant allegedly caused nuisance. Plaintiff warns once. After a subsequent incident, the claimant terminates the verbal housing counseling agreement, under pressure from the housing corporation. With the termination of the housing supervision agreement, the inextricably linked rental agreement would also have been terminated. Plaintiff then requests eviction in summary proceedings. The Subdistrict Court ruled that the plaintiff could not reasonably terminate the contract. The requested eviction is therefore rejected.

Facts

Defendant has mental health problems. In that context, the parties will enter into a (sub)lease as of 1 July 2021. Plaintiff rents from a housing association for this purpose.

The (sub) rental agreement states that the parties have entered into a housing supervision agreement. This is only not signed or attached, but has been established orally.

On November 3, 2021, the plaintiff officially warned the defendant for transgressive behavior. Plaintiff thereby states that he is entitled to terminate the tenancy agreement and residential counseling agreement if the defendant does not improve his behaviour.

On November 25, 2021, the defendant allegedly opposed his arrest for sedition.

By letter dated December 8, 2021, Plaintiff terminates the tenancy agreement and (verbal) housing supervision agreement. Plaintiff invokes the General Terms and Conditions of Delivery for GGZ 2017 and observes one month's notice period. Defendant thus had to vacate no later than 7 January 2022.

On December 31, 2021, the defendant will be arrested on suspicion of assault, for which he is in pre-trial detention at the time of the oral hearing of this case.

Claim

Plaintiff is claiming by judgment, provisionally enforceable and – although the legal basis for this has been lacking since January 1, 2002: the judgment is based on art. 430 Rv enforceable on the grosse – enforceable on the minute, eviction within three days after service of the judgment, with an order to pay the costs of the proceedings, plus the statutory interest.

Plaintiff's substantiation

Plaintiff argues that the lease has been entered into for a definite period of time, until the residential counseling agreement ends or the defendant no longer needs residential counseling. The tenancy agreement would thus be inextricably linked to the residential supervision agreement, in which the care element would predominate. The housing supervision agreement was only concluded orally, because the defendant would not have cooperated in the conclusion of a written housing supervision agreement after the tenancy agreement was concluded.

The defendant would have a negative impact on the living environment and create a feeling of insecurity. This regularly leads to complaints to the housing association, from which the claimant rents the house. The housing association has urged the plaintiff to terminate the (sub)lease and housing counseling agreement. Now that the agreements have been terminated as of January 7, 2022, the defendant would reside in the home without right or title.

According to the plaintiff, the defendant needs more intensive treatment. Without completed treatment, the defendant would not be able to live independently. Defendant does not want to leave the house, while Plaintiff wants to assign the house to a client on the waiting list.

Defense

Defendant disputes the urgency of the matter. The care element would not predominate, so that he enjoys rent protection. Some behaviors are disputed. The remaining conduct does not justify termination, partly because the defendant was warned only once.

In the alternative, the defendant requests an eviction period of two months. Eviction would only have disastrous consequences, because of the need for care.

Urgent interest

If the subdistrict court judge were to follow the plaintiff in her argument that the defendant caused serious nuisance, then she has an urgent interest in eviction. The fact that the defendant is in pre-trial detention does not change that. The criminal case will be heard shortly. There is therefore a real chance that the defendant will be released in the short term.

Soil procedure

It is assessed whether the claim in proceedings on the merits has such a chance of success that it is justified to anticipate this judgment in preliminary relief proceedings. It is disputed whether the care element predominates and whether the termination of the residential supervision agreement is legally valid. If the residential counseling agreement has not been terminated in reason, the eviction cannot be granted. After all, Plaintiff argues that by terminating the housing supervision agreement, the tenancy agreement also ends and eviction must follow. Then it is not necessary to answer whether the concern element predominates.

Applicable Terms

Defendant does not dispute that the General Terms and Conditions GGZ 2017 apply. Now that there is no written housing supervision agreement, the subdistrict court will investigate whether the housing supervision agreement has been legally terminated in accordance with the aforementioned conditions.

According to the conditions, the residential counseling agreement can end after unilateral cancellation by the care institution. To this end, the person cared for must commit such serious criminal offenses or must be repeatedly held accountable for his repeatedly non-fulfilment of responsibilities without a change in behaviour, as a result of which the continuation of the agreement can no longer reasonably be required.

Insufficiently proven

The Subdistrict Court ruled that the plaintiff had insufficiently (specifically) substantiated the seriousness of the conduct, or at least that this justifies termination. The behaviors are only described in general terms. For example, it is not sufficiently clear what exactly the defendant is accused of. Defendant contested the well-specified conduct, while Plaintiff has not submitted substantiation. The allegations cannot be further investigated in summary proceedings.

Cancellation not justified

The Subdistrict Court considers the proven conduct to be only unfortunate or undesirable. This does not justify the cancellation. It is noted in this regard that the defendant was warned in writing only once, while repeated addressing is required.

Plaintiff argues in vain that an eviction judgment activates the authorities involved to find a new home. This does not justify termination of the housing supervision agreement.

Balance of interests

The defendant benefits from the prevention of homelessness. He does state that the house is actually not a suitable place and that he is looking for alternative accommodation and guidance. At some point, this may result in the defendant having to vacate the home after all.

Plaintiff wants to prevent new nuisance. Plaintiff also wants to help another client with a care request.

Partly now that it is not plausible that the termination will remain in the proceedings on the merits, the interest of the defendant outweighs. It is up to the parties to make an effort to find alternative housing and appropriate care and guidance.

Decision

The district court dismissed the claim.

Central Netherlands District Court 10 March 2022, ECLI:NL:RBMNE:2022:9892 (publication date: 25 March 2022)

This article originally appeared in Sdu OpMaat Huurrecht+.

Subscribe to The Journal

* indicates required
Areas of Interest
                    

Pragma International will use the information you provide on this form to be in touch with you and to provide updates and marketing. Please let us know all the ways you would like to hear from us:

You can change your mind at any time by clicking the unsubscribe link in the footer of any email you receive from us, or by contacting us at info@pragma.international. We will treat your information with respect. For more information about our privacy practices please visit our website. By clicking below, you agree that we may process your information in accordance with these terms.

We use Mailchimp as our marketing platform. By clicking below to subscribe, you acknowledge that your information will be transferred to Mailchimp for processing. Learn more about Mailchimp's privacy practices here.

Article Rating: 
Average: 4.7 (3 votes)
Total reads: 170
Marc-Vincent Spanjersberg's picture

Marc-Vincent studied Corporate Law in Rotterdam. He then worked at a consultancy and engineering firm, Antea Group. 

Marc-Vincent has been working at Bos Van der Burg Advocaten since 2021.