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14 Jan 2022 Co-tenancy

Anyone who lives with a tenant without being a tenant or co-tenant is in a weak position from the perspective of tenancy law. After the death of her father, a daughter who lived with him recently drew the short straw. The Court of Appeal of The Hague ruled that she could not be regarded as a (co-)tenant and had to leave the house.

It is difficult for the children of a deceased tenant to enforce their right to continue living in the rented property and to become (co-)tenants of it. For co-tenancy it is important, among other things, that the intended co-tenant has had his main residence in the rented property for at least two years and has conducted a sustainable joint household with the tenant, that the intended co-tenant can pay the rent independently and that no abuse of co-tenancy is intended. In principle, parents and children do not conduct a joint household on a permanent basis because of a declining cohabitation situation.

In the present case, the daughter had gone to live with her father to look after him. The father wrote a registered letter to the landlord to have his daughter included in the tenancy agreement. This letter stated the following:

"Due to a severe lung infection, I have been in a coma for 10 days in the ICU and am in the process of rehabilitation. Because it is no longer responsible to live alone, my daughter has had to move in with me. According to my doctors, even after my recovery, it will most likely no longer be responsible for me to live alone. I would therefore like to request that my daughter be included in the rental agreement so that she can continue to live here with me. If you wish, I can request a statement from my attending physicians showing this.
In the attachment you will also find a copy of her passport (this contains all her important data) and a copy of the rental agreement with the current rent and our signatures. If you need more documents or if there is anything else we need to do, please contact us. If no message is received, I will assume that it is in order."

The landlord did not respond to the letter.

Some time later, the father died. The daughter did not report this to the landlord. The daughter continued to live in the house and pay the rent. After a few years, the landlord established that the father was no longer living in the rented house and asked the daughter to vacate the house. The daughter refused because she was of the opinion that she was a joint tenant, whereupon the landlord instituted proceedings.

In the first instance, the daughter was proved right by the court. The court ruled that a tenancy agreement is established by offer and acceptance, whereby it is important what the parties could mutually deduce from each other's statements and behaviour. The daughter had a legitimate expectation that the landlord considered her to be a joint tenant, thus creating a rental agreement between the parties.

The landlord disagreed and appealed. The Court of Appeal reached a different opinion and granted the lessor's claim for eviction.

The landlord argued that the district court had failed to appreciate that the letter from father was not a regular offer to enter into a tenancy agreement, but a request for joint tenancy as referred to in Section 7:267 of the DCC. The court had not observed the applicable rules: there can be no question of tacit consent to joint tenancy. Therefore, according to the landlord, the daughter had not become a joint tenant.

According to the Court of Appeal, this was correct and this was explained as follows:
"This request cannot be qualified in any other way than as a request for joint tenancy within the meaning of Section 7:267 of the Dutch Civil Code. This section provides that if, within three months of the request, the landlord has not stated in writing that he agrees that the other person will be joint tenant, the tenant and that other person may jointly request the court to determine that that person will be joint tenant. This means that the fact that the landlord has not responded to the request at all does not mean that the daughter has become a co-tenant. This is also not the case in a case where the request states "if no message, I assume that it is okay". When she heard nothing, the daughter could only have obtained co-tenancy by submitting the application to the court, but she and her father did not do so."

Additionally, the court of appeal considered that such a request would have had no chance of success, because it was certain that the condition of Section 7:267 (3) under a of the Dutch Civil Code that the person who wants to become a co-tenant must have had her main residence in the house for at least two years had not been met.

The daughter also argued that the landlord had accepted her as a tenant because the landlord had accepted rent payments from her account for years. According to the court of appeal, it was impossible to see how the landlord, by accepting payments, would have also accepted the daughter as a tenant. After all, rent payments can be made by a third party on behalf of the tenant.

The daughter was therefore not regarded as a (co-)tenant by the court of appeal, as a result of which she stayed in the house without any right or title and had to be evicted.

New legislation is being prepared to make it possible for children to stay in the rented property longer after the death of the parents. Adult children who stay behind can then be offered a temporary rental contract for a maximum of two years. In this way, young adults can focus on mourning and no longer run the risk of having to leave their home within two months. The landlord's consent is not required. We will keep you informed of developments.

Do you have questions or need advice about your position as a (co-)tenant or your contract or do you have a dispute with your landlord or tenant? Please feel free to contact us. We will be happy to be of service to you!

SPEE advocaten & mediation Maastricht


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