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Returning Child Administrator Becomes Co-Tenant
In 2012, the mother was 80 years old when her then 57-year-old son moves in with her. In 2017, the son is appointed as administrator and mentor of his mother with dementia. Six months later, he requests the housing association to designate him as a co-tenant. The housing association refuses. In law she argues that mother and son are inadmissible. In addition, the housing association states that there is no sustainable communal household, because of the care relationship. The court rejects the defenses and determines that the son-administrator has become a co-tenant.
Mother has been renting from a housing association since 2005. Her son becomes a widower, sells the matrimonial home, but cannot find a suitable apartment. In 2012, the 57-year-old son will therefore move back in with his then 80-year-old mother, who needs informal care due to the onset of dementia.
Son was an international truck driver until he became incapacitated for work in 2014. In 2015 he had surgery and was in a wheelchair. Because mother suffers more from dementia, son is appointed in 2017 as administrator and mentor. Mother is then entitled to sheltered housing with intensive 24-hour dementia care, but wants to continue living at home. There she receives care from the son and professionals under the personal budget. Furthermore, mother and son share the fixed costs. In 2018, son sends a letter to the housing corporation to designate him as a co-tenant.
Administrator as co-tenant
A tenant and another person may request the landlord by means of a joint request under art. 7:267 paragraph 1 of the Dutch Civil Code to designate the other as a co-tenant. In 2018, the son requested the landlord in writing to designate him as a co-tenant. The landlord states that this is not a joint request. The court rejects this defense, because the son, as administrator, was authorized to make this request also on behalf of the mother. The housing association has previously rejected the request on substantive grounds. The court therefore assumes that the housing association has previously interpreted the request as joint. If this has been different, then at least the request has been joint since the subpoena.
The housing corporation further states that the son, as administrator, could grant himself the status of co-tenant against the will of the mother. This would be contrary to the purport of art. 7:267 paragraph 1 Dutch Civil Code. The court rejects this defence. As administrator, the son represents his mother in and out of court (cf. HR 7 March 2014, ECLI:NL:HR:2014:525). The housing corporation has not argued why the son-administrator should not have exercised that power in this case. Furthermore, co-tenantship is in the mother's interest, because she has an interest in a clear and secure legal position of her informal caregiver.
Returning child as co-tenant
art. 7:267 paragraph 1 of the Dutch Civil Code requires a sustainable joint household, assessed on the basis of all the circumstances of the case in relation to each other. As a rule, returning children will have a declining cohabitation situation. Thus, the return of a child can only be regarded as a permanent cohabitation with a common household under special circumstances (cf. HR 12 March 1982, ECLI:NL:PHR:1982:AG4340, NJ 1982, 352 and HR 8 October 2004, ECLI:NL:HR:2004:AQ7364).
The son registered as a home seeker in 2012. He has never responded to a house and had been living with his mother for six years before the request for co-tenancy was made. That is why the Court of Appeal does not consider it plausible that the son's approach was to circumvent the waiting lists for a rental home 'through his mother'. The son went to live with his mother because he needed a house. Although the mother was already demented in 2012 and has been in need of informal care since then, the need for care was not so great that she had to be admitted in the short term. Mother has now had an indication for admission to a care home for four years, but she and her son do not want her to be admitted.
Due to the advanced age and medical problems, there is only limited participation in social life. Also, although there is no proportional reciprocity, the reciprocity is not completely absent. The son has been taking care of his mother as a caregiver since 2012, and when the son was in a wheelchair, mother took care of him. There is financial reciprocity. Mother and son share the fixed costs (rent, utilities and living expenses). In addition, there is reciprocity from each other's presence. The son does the shopping and cooks meals that mother and son eat together. Thus, there is a sustainable communal household.
The court overturns the verdict, re-does justice and determines that the son will be a co-tenant.
Court of Appeal of 's-Hertogenbosch 11 January 2022, ECLI:NL:GHSHE:2022:27 (published date: 12 January 2022)
This article originally appeared in Sdu OpMaat Huurrecht+.