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25 May 2022 Defects to the rented property

Defects to the rented property often cause discussion between a tenant and landlord. In case the landlord does not repair the defects or does not repair them quickly enough, a tenant may be tempted to stop paying the rent in order to put pressure on the landlord. Is it wise to act in this way?

What is a defect?

A defect is a state or characteristic of a property or another circumstance not attributable to the tenant as a result of which the property cannot provide the tenant with the enjoyment which, upon entering into the agreement, he may expect from a well-maintained similar property. There is no question of a defect if the limitation of enjoyment is caused by a circumstance that can be attributed to the tenant himself, for example if moisture and mould problems arise because the tenant does not ventilate adequately.

The landlord is not responsible for all maintenance. The tenant is responsible for carrying out so-called ''minor repairs''. An enumeration of what falls under this can be found in the ''Decree on small repairs''. For example, painting or wallpapering interior walls, garden maintenance, toilet and shower fittings and renewing parts such as hinges and locks. The tenancy agreement may not deviate from this to the detriment of the tenant. This is different for commercial premises, where it is allowed to exclude defects by contract.

Duty of the tenant to act

When the tenant discovers a defect, he is always obliged to report it to the landlord first and give the landlord the opportunity to remedy the defect. If the tenant does not report the defect immediately, then the tenant is liable for the damage that occurs as a result of this negligence, for example in the case of a leak. This is considered a violation of the obligation to behave as a good tenant. A landlord does not have to remedy defects if this is impossible or involves such high costs that the landlord cannot reasonably be expected to incur them. However, this is not likely to be the case.

Means of action of the tenant

What can the tenant do if the landlord refuses to remedy a defect or if the work is unsuccessful?

  1. If the landlord can remedy the defect but fails to do so within a reasonable time, then the tenant may remedy the defect himself, at the landlord's expense. The reasonable costs incurred for this may be deducted from the rent. Note: if it emerges afterwards that the tenant has wrongly deducted costs from the rent, this may constitute breach of contract with all its consequences!
  2. In addition, the tenant can claim a proportional reduction in the rent.
    Please note: a reduction in the rent may not be enforced by the tenant himself. A claim for reduction of rent should be submitted to the court. A condition for the right to reduce the rent is that the landlord has been informed of the existence of the defect and has had the opportunity to investigate it.
  3. The tenant may also, if not contractually excluded, suspend all or part of the rental. Note: this only means postponement of payment until the defect has been repaired, not reprieve! After the defect has been repaired, the rent must still be paid in full with retrospective effect. A disproportionate suspension can also lead to dissolution of the rental agreement.
  4. If the defect is so serious that the enjoyment of the tenancy has (almost) completely disappeared, for example due to a fire, it is possible, under certain conditions, to dissolve the tenancy agreement.
  5. Finally, the tenant has the right to claim compensation if he has suffered damage as a result of the defect, such as direct property damage. Compensation is involved if the landlord is liable for the occurrence of the defect or knew or should have known of the defect before the start of the tenancy.

Do you have a conflict with your tenant or landlord about defects in the rented property, or do you need help setting down agreements in a (rental) contract? Please contact one of our lawyers without obligation. We will be happy to assist you.

SPEE advocaten & mediation Maastricht


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