Can a landlord be considered the functional perpetrator of a violation of the Housing Act?

On February 20, 2025, the District Court of The Hague ruled in a case brought by Chloë Karlas concerning an administrative fine for violating the Housing Act. In this case, the landlord was wrongly deemed to be the offender.

What was this case about?

An owner rented a house in The Hague to three people. During an enforcement action, an inspector found that not three, but thirteen people were living in the house. As a result, the independent living space had been converted into a non-independent living space without a permit being issued, which is in violation of the Housing Regulation and the Housing Act. The municipal executive imposed an administrative fine of €10,000 on the owner as the functional perpetrator of the violation.

The fact that there had been a violation of the Housing Act was not a point of dispute between the parties. However, the parties differed in their opinion as to whether the violation that had been established could be attributed to the owner as the functional perpetrator in connection with whether or not he had fulfilled his duty of care.

Homeowner wrongly designated as the functional perpetrator

The court ruled that the violation for which the owner had been fined was directly related to the use of the home. As a rule, a homeowner can dispose of such use of his home, even if he has rented it out. This means that, in the opinion of the court, he had power of disposal over the use of his home.

However, this case concerned the question of whether the owner had accepted the violation. The court answered this question in the negative. The owner had entered into a lease agreement with three people, which explicitly stated that subletting was not permitted. Ten weeks later, during an enforcement action, an inspector found that the property was occupied by 13 people. The owner was not aware of this violation, but cleared the property shortly after being notified of it.

Nor did the court agree with the argument of the mayor and aldermen that the owner had failed to adequately supervise the use of the property. In the short period between the lease agreement and the inspection, three home visits took place (by the owner, the real estate agent, and a repairman), during which no abnormalities were observed. Given the short period of time, the court did not consider the lack of direct reports of the home visits to be decisive. The court ruled that the rental period in this case was so short that even if no inspections had been carried out, this would not in itself be sufficient to conclude that the owner had breached his duty of care. There were no additional circumstances in this case that would justify such a conclusion.

In the court's opinion, the municipal executive had therefore failed to demonstrate sufficiently that the owner could be held responsible for the violation as the functional perpetrator because he had failed to fulfill his duty of care. The appeal was upheld and the administrative fine was annulled.

The extent of this duty of care and whether checks must be carried out may vary from case to case and also depends on the information available to the landlord.

Annotation by Fabian van Hal

This ruling is in line with previous rulings and also with the rulings of the highest administrative court, the Administrative Law Division of the Council of State. Fabian wrote an annotation on this matter, following a ruling by the Administrative Law Division of the Council of State.

In that case, too, the owners of the property were fined for overcrowding. Even though the landlord did not commit the offense himself, he can still be fined for it if he was aware of the offense and accepted it.

The court often rules that the power of disposal is not in question. After all, as the owner of a property, you generally have the ability to prevent a violation. The situation is different when it comes to accepting a violation. Since May 31, 2023, the administrative court has aligned itself with the criminal interpretation of functional perpetration. This has made it much more difficult to establish the acceptance of an offense by a homeowner, as is evident from the ruling of February 20, 2025. A blog about this was previously published on our website.

In his annotation, Fabian concludes that the case law of the highest administrative court does not impose a general obligation to check either. In this case, too, it was not apparent that the landlords were aware of the number of residents. If landlords do not know or cannot know about a violation, they are not required to inspect their property. This may be different if they have received indications of a violation occurring in their property.

Need advice or assistance regarding the Housing Act?

If you have received (or are expecting to receive) an administrative fine under the Housing Act and/or a Housing Regulation, please contact us as soon as possible. Our firm can assist you both in the opinion phase and in the objection and appeal proceedings.

In addition, our office can also provide you with advice aimed at preventing disputes with administrative bodies, known as compliance advice.