The Supreme Court recently gave a further explanation of the presumption of evidence of Art. 7:218 (2) DCC: the presumption of evidence applies to both the existence of a shortcoming and the causal link between that shortcoming and the damage caused. What was at stake here?
Very serious damage had occurred to a rented upstairs flat and the downstairs flat below it, both owned by the landlords, because water had flowed for a long time from a water tap of the central heating system on the attic floor. Permanent water pressure caused the filling hose of the central heating system to disconnect from the water pipe. The rented property and the downstairs flat became flooded, causing the property to be declared temporarily uninhabitable. The landlords claimed that while fixing a small leakage from the connection of the filling hose to the drain and fill valve of the water pipe, the tenants opened the water tap and did not close it again. The tenants argued that they neither saw nor touched the water tap, but only the drain and fill tap. The tenants' assumption was, the water tap was already open when they moved into the rented property, hidden from view by the filling hose connected to the central heating system. The landlords initiated proceedings and claimed damages from the tenants in these proceedings.
Judgement of the court and court of appeal
The district court upheld the claims, the court of appeal dismissed them. The court of appeal ruled that the landlords bore the burden of proof of the shortcoming (turning on and failing to close the water tap again) and that the presumption of proof of Section 7:218(2) of the Civil Code only concerned the causal link between the shortcoming and the damage. Based on this division of the burden of proof, the court of appeal ruled that the landlords failed to prove that the tenants turned on the water tap and did not turn it back on.
Section 7:218(2) of the Civil Code
The issue in cassation is whether the court of appeal assumed a correct interpretation of Section 7:218(2) of the Civil Code.
Article 7:218 BW stipulates:
"1. The lessee shall be liable for damage to the leased property caused by a failure to perform an obligation under the lease contract attributable to him.
2. All damage shall be presumed to have been caused thereby, except for fire damage and, in the event of renting a built-up property or part thereof, damage to the outside of the rented property.
3. Without prejudice to Article 224(2), the tenant shall be presumed to have received the rented property in an undamaged condition."
Supreme Court ruling
The presumption of proof of article 7:218 paragraph 2 of the DCC concerns damage to the leased property that occurred during the term of the lease. The legislative history shows that this provision creates a rebuttable presumption that the damage to the leased property was caused by a shortcoming on the part of the lessee. It is a rule of evidence which is justified by the fact that, as a rule, the tenant is in a much better position than the landlord to ascertain the cause of the damage to the leased property. That paragraph 2 is to be understood in this sense can also be deduced from the conservative sentence of that provision. In connection with the exceptions for fire damage and damage to the exterior of a built-up property, the explanatory note refers to the cause of the damage. This does not refer to ambiguity as to whether there is a causal link between a (proven by the landlord) failure of the tenant and the damage. It refers to ambiguity as to whether the damage can be traced to a failure by the tenant.
The presumption of proof thus applies to both the existence of a default and the causal link between that default and the resulting damage.
In short, in this matter, it was up to the tenants to rebut the presumption of proof that the water damage was caused by their fault.
The judgment of the Court of Appeal was therefore overturned by the Supreme Court.
Valuation of evidence
The rebuttal evidence to be provided by tenants is not bound by any particular rule. Whether in a concrete case this evidence should be deemed to have been provided, even if the cause of the damage has not been established, is left to the discretion of the court. The tenants do not bear the risk of proof and do not have to prove the opposite of the presumption - that no shortcoming on their part caused the damage. It is sufficient for them to disprove the presumption. If the tenants succeed in doing so, it remains for the landlord to prove under the main rule of Section 150 Rv that the damage was caused by a shortcoming on the part of the tenant.
In valuing the evidence, the court has discretion. The valuation of the evidence will take into account all the circumstances of the case. This will include the nature of the damage and the nature of the tenant's possibly underlying shortcoming, as well as the question to what extent the damage and its possible cause were of a hidden or non-hidden nature. Section 7:218 of the Dutch Civil Code concerns 'damage to the leased property' and thus refers to the impairment of this property during the rental period. This does not exclude the possibility that the facts that led to this impairment may already have been present before the rental period started. The more likely the latter is, the more reason there is to rule that the presumption of evidence of Section 7:218(2) of the Civil Code is negated.
Do you have questions or need advice on damage to the leased property or your lease? If so, please feel free to contact one of our lawyers without any obligation. We will be happy to assist you!