Obligation to Pay Damages in the Event of Maintenance Work
A discussion of Subdistrict Court of Amsterdam dated 22
August 2008, docket number 37966/07, in which case an answer was
given to the question of whether the execution of major repairs by
the landlord constitutes an isolated defect on the basis whereof
the landlord is obliged to pay the tenant damages.
Landlord's Obligation to Pay Damages
A defect is a condition or quality of the thing or
any other circumstance not attributable to the tenant as a result
of which the thing cannot give the tenant the enjoyment which, upon
entering into the contract, a tenant may expect from a properly
maintained thing of the kind to which the contract relates (Section
7:204 subsection 2 of the Dutch Civil Code ("BW")).
An obligation to pay damages exists if there is a defect
attributable to the landlord which has arisen after entry into the
contract, or a defect which was present on entry into the contract
and of which, at that time, the landlord was or ought to have been
aware, or had assured the tenant that it was absent (Section 7:208
of the BW).
The Facts in the Judgment
The tenant has been renting a self-contained
accommodation which is part of a block of buildings containing 180
apartments from the housing corporation since 1995. At the time of
entry into the tenancy agreement, the tenant purchased a marble
floor from the previous tenant for an amount of NLG2,000 with the
landlord's consent. The housing corporation gave its consent to
this purchase, on the condition that at the end of the tenancy
agreement the tenant would remove the marble floor at her own
expense.
In 2007 the housing corporation carried out major repairs on the
block of buildings as a consequence of which the tenants had to
vacate their houses temporarily. For the execution of the major
repairs it was necessary to remove the marble floor in the
tenant's house.
In these proceedings the tenant claimed full compensation of the
damage she had suffered pursuant to Section 7:208 of the BW. The
tenant brought forward in this respect that upon entering into the
tenancy agreement the housing corporation was aware of it that the
houses in the block of buildings had defects, and that as a result
thereof maintenance work would be necessary in the future. The
housing corporation should have warned the tenant about this.
The Subdistrict Court's Opinion on the Obligation to
Pay Damages in the Event of Maintenance Work
The Subdistrict Court established that more than
twelve years after the start of the tenancy agreement the execution
of the major repair work had begun. From this long-term lapse of
time alone it can be gathered that the housing corporation could
not foresee in 1995 that a moment would come when the occupants of
the block of buildings would have to vacate their houses
(temporarily) in order to allow the execution of this work,
according to the Subdistrict Court. In other words: the housing
corporation could not foresee that the marble floor would have to
be removed in the future. The Subdistrict Court therefore ruled
that there is no question of a defect of which the housing
corporation could have been aware at the time of entry into the
tenancy agreement. In that connection the Subdistrict Court
considered that buildings will wear out over the years and defects
will come to light that will compel the landlord's action. The
Subdistrict Court established that the housing corporation has
always done everything necessary to remove inconveniences, so that
it cannot be said that if a building shows wear and tear and at a
certain moment does not meet the requirements set anymore, the
defects are to be attributed to the housing corporation. In the
opinion of the Subdistrict Court, Section 7:208 of the BW therefore
does not apply.
To conclude, the Subdistrict Court considered that the tenant
voluntarily purchased the marble floor from the previous tenant,
and that she has committed herself at that time to remove the floor
at her own expense upon the end of the tenancy agreement. The
housing corporation had not opposed the purchase, but in doing it
had not assumed the risks related to the marble floor.
The Subdistrict Court concluded that the tenant is not entitled
to any compensation of damage for the loss of her marble floor and
ordered the tenant to pay the costs of the proceedings.
Conclusion
In order to obtain damages, the tenant must prove that there is a
defect. In principle, the execution of maintenance work in itself
does not constitute a defect and therefore does not entail an
obligation to pay damages.