The 3 most common breaches of contract by a tenant
A landlord can ask the court to terminate a residential tenancy agreement. This is possible in cases where the tenant breaches the agreement. The court can consequently order the tenant to evict (in Dutch: ontbinding en ontruiming) the property. A residential tenancy agreement can be terminated according to the statutory grounds for termination by giving notice (in Dutch: opzegging). Termination of an agreement can also take place by mutual consent (in Dutch: wederzijds goedvinden). However, sometimes a breach of contract is also one of the grounds for terminating a residential tenancy agreement as well. In the following I will discuss the three most common breaches of contract by a tenant.
The first and most common breach of contract by a tenant is being in arrears. The main obligation of a tenant is to pay rent and when he does not pay, he is in arrears. This in itself is not enough to terminate the agreement. It is clear from the case law that a tenant has to be in arrears for at least three months for the breach to be sufficient to justify the termination of the tenancy agreement and the eviction of the tenant (article 6:265 jo 7:321 DCC).
A landlord cannot terminate the tenancy agreement for breach on his own. He has to ask the court to terminate the tenancy agreement and set a date before which the tenant has to vacate the house (article 6:265 jo 7:231 paragraph 1 DCC). If the tenant does not vacate the house before this date, he will be evicted. Sometimes, the court will grant the tenant a terme de grâce (article 7:280 DCC). If the tenant meets his obligations during this time – meaning he pays the outstanding rent – in most cases a judge will rule that the tenancy agreement will be upheld and the tenant does not have to vacate the house.
Acting in violation of the Opium Law
The next breach of contract is violation of the Opium Law. Articles 2 and 3 of the Opium Law provide that it is illegal to engage in drug related activities. If a tenant engages in drug related activities in or around the house, for example by keeping a hemp farm, he is in breach of his contract and the landlord may ask the court to terminate the agreement (article 7:213 DCC). It is important to stipulate a clear prohibitory provision in the tenancy agreement stating which activities are not allowed in the house.
The court is likely to terminate the agreement if the drug related activities are a hazard for the house or its environment or cause any nuisance. If there is no hazard or nuisance however, there is a good chance the court will rule the breach is not sufficient enough to justify termination and will reject the claims.
Besides the foregoing, it is also possible that the police learns about the drug related activities of the tenant. The mayor then has the authority to order the closure of the house (article 13b Opium Law). If this is the case and the mayor closes the house, the landlord does not need to ask the court to terminate the agreement for breach. He can do so himself by invoking article 7:231 paragraph 2 DCC.
Causing longlasting and severe nuisance
The last common breach of contract is when a tenant causes nuisance to others or the environment around the house (article 7:213 DCC). For example if he makes a lot of noise, creates a stench or if he vandalizes the property of others. It is clear from case law that neighbours must endure some nuisance from each other. But when the nuisance is unlawful, it will qualify as a breach of contract. The landlord may ask the court to terminate the tenancy agreement and evict the tenant. The court will, however, only terminate the agreement if the nuisance is evident, therefore longlasting and severe. You would be wise to document the nuisance the tenant has caused before going to the court, so you can show the court that the termination for breach is justified.
The tenant does not have to cause the nuisance himself. The tenant is in general responsible for the people he allows into his home. If these people cause nuisance and the tenant does nothing to stop it, then the tenant risks termination of the agreement and eviction of the house because of the behaviour of his visitors. The nuisance of his visitors must also be evident.
If you have a question about a breach of contract or if you need legal assistance in court proceedings to terminate a residential tenancy agreement, please do not hesitate to contact one of our specialists.
Zoë works as a lawyer in real estate & tenancy law. She is analytically strong and solution-oriented. Zoë is involved in disputes between landlords and tenants. She also assists sellers and buyers in property transactions and related disputes. Clients value Zoë for her involvement and goal-oriented approach.