Leasing/letting: A defect in the rented property: Who is responsible?

In the event of defects, a tenant has to give the landlord the opportunity to repair the defects. If the landlord fails to do so, that tenant may have the defects repaired at the expense of the landlord.

A defect in the rented property

There is a defect in the rented property if:

• the rented property does not provide the tenant with the enjoyment he could have expected when entering into the tenancy agreement, and
• the defect was not caused by the tenant.

This can be the case, for instance, in the event of leakage for which the tenant is not responsible or if the property proves to be so unstable that it can only be used to a limited extent. The inability to use a property as a result of government measures, such as during the coronavirus crisis, is also considered as a defect.

In the case of business premises, the parties have more room to make arrangements about what is considered a defect and what not. Examples are insufficient or inadequate ICT- and power supplies, and asbestos.

In principle, the landlord is responsible for repairing the defects, but defects caused by the tenant’s failure to comply with his maintenance obligations are at the tenant’s expense.  This also applies to defects to items that the tenant has installed in the rented property.

What can the tenant do?

Repairing a defect

If the tenant discovers a defect, he must always report the defect to the landlord and give him the opportunity to repair it. The costs of repair are to be borne by the landlord.

If the landlord is able to repair the defect, but fails to do so within a reasonable period, the tenant may repair the defect himself, at the expense of the landlord. The reasonable costs incurred may be deducted from the rent. Please note: If it subsequently becomes clear that the tenant has wrongly set off the costs against the rent, this can result in breach of contract with all the consequences.

Reduction in rent

The tenant may not just demand repair of the defect but also a reduction in the rent and damages. The tenant must claim a reduction in rent in legal proceedings and the reduction must be proportional to the reduction in enjoyment. Damages are payable if the landlord is liable for the defect or should have been aware of it before the start of the tenancy agreement.

Dissolution of tenancy agreement

If the defect is of such an extent that the rental enjoyment has (almost) completely disappeared, for instance due to a fire, it is possible to dissolve the tenancy agreement. In that case, certain requirements must be met.

Tips for tenants

• Make clear arrangements about the quality with which the rented property must comply and have this laid down in the tenancy agreements. Particularly in case of business premises, it is possible to deviate from statutory regulations and this often happens. A lawyer can help you with this.
• Complain to the landlord if the rented property does not comply with the agreed quality requirements and give him a reasonable period to repair the defect.
• Discuss the possibility of rent reduction and/or damages with your lawyer.
• In the event of (almost) complete reduction of your rental enjoyment, check the possibility of termination.
• Have a lawyer assess the situation and advise you on the steps to be taken.

What can we do for you?

We will be happy to help you draw up a tenancy agreement, which clearly states which requirements the rental property has to meet and what happens if these arrangements will not be complied with. If the rented property is defective, we can assist you in finding a suitable solution, such as rent reduction. Please contact us: