Last month, the Supreme Court ruled on an issue in which a cohabitant sought continuation of the lease after the death of the tenant. The landlord was of the opinion that the cohabitant did not provide sufficient guarantee of proper performance of the lease. According to the cohabitant, the burden of proposition and proof regarding the provision of insufficient security should rest on the landlord.

The facts

With effect from 1 July 1985, the landlord's legal predecessor had entered into a lease with the cohabitant's parents. In 2004, the landlord became the owner of the property and continued the rental agreement with the parents.

The cohabitant registered at the address of the property in December 2011. Together with his father, he cared for his mother as a carer. In 2012, the mother passed away. Afterwards, he provided informal care to his father, who died in September 2019. In October 2019, the landlord's administrator requested the heirs to give up the property. The cohabitant then informed that he was staying in the property to rehabilitate after a cardiac arrest and asked if he could deliver the property later. The administrator replied that it was a surprise that the cohabitant would be living in the home and that he was allowed to stay in the home until November 1, 2020, as a courtesy.

The cohabitant then claimed under Section 7:268(2) of the Civil Code to stipulate that he continue the tenancy of the dwelling. In counterclaim, the landlord claimed eviction of the dwelling.

Judgment of the Subdistrict Court and Court of Appeal

The subdistrict court rejected the cohabitant's claim and ordered him to vacate the dwelling within a month of service of the judgment.

The court of appeal subsequently upheld the subdistrict court's judgment.

According to the court, granting the cohabitant's claim required at least that he had his main residence in the dwelling and that he and his deceased father shared a permanent common household. Among other things, the claim had to be dismissed if the cohabitant did not make it plausible that he met those requirements or did not provide sufficient guarantee from a financial point of view that the rent would be properly paid.

According to the court, even if it was assumed that the cohabitant (had) principal residence in the house, his claim could not succeed. Against the landlord's claim that the cohabitant did not provide sufficient guarantee for proper performance of the rent, the cohabitant argued that no rent arrears existed, that he had received a substantial inheritance and that his brother could guarantee the monthly rent instalments, while prepayment for a longer period had been promised, of which he had offered proof. The landlord did not dispute that there was no rent arrears. However, that mere circumstance was insufficient to assume that the cohabitant provided sufficient guarantee, from a financial point of view, that the rent would be properly paid. This was all the more true as the cohabitant's entire monthly income consisted only of an old-age pension. His assertions that he had received a substantial inheritance and that his brother could act as guarantor for the monthly rent instalments, while advance payment had been promised for a longer period, had not been substantiated in any concrete way, despite the clear finger-pointing that the subdistrict court had already given on this point, for example by means of written statements from the notary and from his brother showing this. This meant that the cohabitant had not sufficiently substantiated the landlord's claim that he did not provide a sufficient guarantee of proper performance of the lease. His offer of proof on this point was therefore passed. His claim for continuation of the tenancy was therefore dismissed.

Supreme Court ruling

Before the Supreme Court, the cohabitant complained that the court of appeal had erred in law regarding the burden of proof and the obligation to suppose with regard to providing insufficient security. The burden of proposition and proof on this point would rest on the landlord.

According to the Supreme Court, this complaint lacked factual basis. The court of appeal had ruled that the cohabitant had not sufficiently substantiated the landlord's claim that he did not provide sufficient guarantee of proper performance of the lease. Thus, the court of appeal had not taken as its starting point that the person who wants to continue the lease in the event of the tenant's death must state and, if necessary, prove that he provided sufficient guarantee of proper performance of the lease.

For the sake of completeness, the Supreme Court considered the following: "Upon the death of the tenant, the person who has his main residence in the living accommodation and has had a permanent common household with the tenant may claim to determine that he continues the lease (Section 7:268(2) of the Civil Code). The court shall in any case reject that claim if the plaintiff does not provide sufficient guarantee from a financial point of view for proper performance of the lease (Section 7:268 (3) opening words and under b of the Civil Code). Partly on the basis of the establishment history of Art. 7:268 DCC, reproduced in the Advocate General's Opinion under 2.11-2.18, it must be assumed that the burden of proposing and proving the circumstance that the claimant does not provide sufficient guarantee of proper performance of the rent from a financial point of view rests on the lessor. Since determining whether the plaintiff provides insufficient security requires an understanding of the plaintiff's financial position and data relating thereto is within its domain, the plaintiff may, as a rule, be required to provide sufficiently concrete data, in particular on his income or assets, to justify his challenge to the landlord's claim that he provides insufficient security."

Thus, for the cohabitant to have satisfied a sufficiently reasoned challenge to the landlord's claim, he must provide sufficient concrete data. The cassation appeal was dismissed and the cohabitant had to vacate the house within a month of service of the judgment.

Do you have questions about your position as a cohabitant or would you like advice on a lease? If so, please contact one of our lawyers without obligation. We will be happy to assist you.