The District Court of The Hague recently dealt with an issue that raised the question of whether letting rooms in a flat violated the division regulations.
The Association of Owners (VVE) claimed cessation of use by the owner under a penalty, because according to the division deed only private residential use by the owners or users and their families would be allowed and letting rooms to migrant workers would be contrary to this. Were the VVE's claims upheld?
The facts
The defendant owns two flats in the apartment complex and, in mid-2019, obtained a residential conversion permit allowing the conversion of both self-contained flats into non-self-contained accommodation for five persons per flat. Both flats have since been occupied by several persons.
Article 16.4 of the subdivision deed reads as follows:
" The purpose of the flat rights with indices A-5 to A-22 is that of dwelling with associated storage for private residential use by the owners or users and their families."
On 23 January 2020, in response to complaints of nuisance, the VVE sent an email to the defendant containing, as far as relevant, the following text:
" The purpose of the flat rights a5 to a22 is that of dwelling with associated storage for private residential use by the owners or users and their families. In accordance with the deed of subdivision, letting as you are currently conducting is not permitted. We therefore request you to terminate the letting in this manner."
On 19 February 2020 and 19 May 2020, the VVE again summoned the defendant to cease this mode of use but the defendant did not comply.
At the members' meeting held on 18 July 2022, the board was mandated to initiate proceedings against the defendant. On 24 July 2020, the VVE summoned the defendant to cease the use for the last time without result.
Claims VVE
In summary, the VVE claimed in the proceedings a declaratory judgment that the way in which the defendant was using the flat rights was contrary to (Article 16 of) the subdivision deed, to order the defendant to cease the contrary use (or have it cease) within one month after service of the judgment, subject to a penalty payment, and to order the defendant to pay the costs of the proceedings and statutory interest thereon.
Position of the VVE
The VVE argues that the defendant's method of use, renting to several tenants who do not form a family, violates Article 16.4 of the division deed: private residential use by the owners or users and their families. The tenants do not form a family as they have no family ties, lasting and affective ties do not exist between them nor do they provide care and support to each other. Thereby, in violation of the subdivision deed, the flats are actually operated by the defendant as a business by being given in use for a short time to several, changing persons.
Interpretation of division deed
The court ruled as follows:
"The question to be answered is whether the defendant acted contrary to Article 16.4 of the division deed. When interpreting this deed (which is known from the public registers), the intention of those who proceeded with the division must be taken into account. That intention must be derived objectively from the description in that deed, viewed in the light of the deed as a whole. Legal certainty requires that only information which is known to third parties from or on the basis of the demerger documents entered in the public registers may be taken into account. If the registered demerger documents are open to different interpretations, the court must determine which interpretation of those documents is the most plausible according to objective standards. The interpretation may, however, take into account the plausibility of the legal consequences to which one or the other interpretation could lead.
Article 16.4 of the division deed provides that the flats may only be used for private residential use by the owners or users and their families. In this context, it is relevant that the Amsterdam Court of Appeal (ECLI:NL:GHAMS:2016:3750) has ruled that letting or other forms of occupancy are consistent with the zoning provision in the division deed, as it leads to "private residential use" by the tenant/users themselves.
Referring to a decision of the Court of Appeal of The Hague (ECLI:NL:GHDHA:2016:3719) the VVE argued that there was no occupancy by a "family", rooms were rented out to persons who had no lasting and affective ties with each other. The court ruled that that ruling did not apply to this case, because the wording of the division deed in the present proceedings differs on a crucial point from the wording of the division deed that the Court of Appeal of The Hague ruled on. In these proceedings, the zoning is "dwelling (court: singular) with associated storage for private residential use by the owners (court: plural) or users (court: plural) and their families." Thus, the division deed - unlike the provision at issue in the Hague Court of Appeal judgment - provides for use of a flat by multiple entitled persons (owners/tenants) and their families, if any. It also follows from the wording that the owners/tenants need not belong to the same family."
Conclusion
This means that the way the defendant uses the flats - room renting - does not violate the subdivision deed, "rooming out" is not prohibited. The VVE's claims were therefore dismissed by the court with an order for the VVE to pay the costs of the proceedings.
Want to know more or have questions about your position as a flat owner or VVE issues? Then feel free to contact one of our specialised lawyers. We will be happy to assist you!