In this case, the claimants (a tenant) have been renting a home from the defendant (the landlord) since February 2021. The home is part of a complex that uses a sustainable aquifer thermal energy storage installation (WKO) for heating and hot water. Operation of the WKO installation is outsourced to a third party (company 3), and tenants are required to enter into a heat supply agreement with this company.

The claimants take the position that the fixed costs for the WKO installation, which they must pay to company 3 every month, should actually be borne by the landlord. In their view, these costs form part of the bare rent, since they relate to the investment in and maintenance of the installation, which is needed for the rented home. They refer to a Supreme Court ruling in which it was established that such costs form part of the rent.

In its judgment, the subdistrict court ruled in favor of the claimants and held that the costs of investing in and maintaining the WKO installation do indeed fall to the landlord. The tenant should not have to pay these costs separately, because they are in fact included in the rent. The landlord is therefore ordered to repay these costs and to reimburse them going forward.

The landlord does not accept this and lodges an appeal, not without success.

The Court of Appeal’s ruling.

The Court of Appeal’s main considerations are:

1. The WKO installation does qualify as an immovable appurtenance under Article 7:233 of the Dutch Civil Code, but this does not mean that the landlord must bear the fixed costs for the installation.
2. The tenant has a separate heat supply agreement with Eteck, not with Tuindorp the landlord. This implies that landlord Tuindorp is not responsible for the costs charged by Eteck.
3. The law provides no basis for holding that Tuindorp, as landlord, must pay the fixed costs of the installation, especially since Tuindorp does not supply any heat or cooling.
4. The 2022 Supreme Court ruling that was cited only applies if the landlord itself supplies heat or cooling, which is not the case here.

The Court of Appeal concluded that there is therefore no legal or contractual basis for the alleged payment obligation of landlord Tuindorp toward the tenants.

What lessons can you draw from this case as a landlord

The essence of this case for the landlord is that clarity and transparency about the costs of facilities such as a WKO installation are crucial when entering into lease agreements.

There are a few important points a landlord should pay attention to:

1. Clear agreements on costs:

• The landlord must explicitly state which costs are borne by the tenant, such as the costs of operating and maintaining facilities like a WKO installation.

• This can be done in the lease agreement or in additional documents, such as an information brochure, so that the tenant is well informed about their obligations.

2. Separation between the lease agreement and the heat supply agreement:

• In this case, the heat supply was outsourced to a third party, Eteck. The tenant had a separate heat supply agreement with Eteck. It is important to clearly state in the lease agreement that this heat supply falls outside the lease agreement and that the tenant must enter into a separate agreement for it.

• The costs of the WKO installation (heating and cooling supply), including fixed operating and maintenance costs, therefore do not fall under the bare rent and are billed separately by the heat supplier (Eteck in this case).

3. Take legislation and case law into account:

• Landlords must be aware of relevant legislation such as the Heat Act (Warmtewet), which regulates the supply of heat and protects the tenant against excessive costs.

• In addition, relevant case law must be taken into account, such as the Supreme Court ruling, which only imposes certain obligations if the landlord itself acts as the supplier of heat or cooling, which was not the case here. If the landlord had entered into the heat supply agreement with the tenants (instead of Eteck), the landlord would indeed have had to pay the tenants in this case.

4. Avoid ambiguity about maintenance costs:

• Make sure tenants are not left with the impression that certain operating and maintenance costs of, for example, a WKO installation are included in the bare rent. The cost structure must be clear so that there is no room for misunderstandings about who is responsible for which costs.

In short, a landlord must above all ensure that the lease agreement and any additional contracts or arrangements regarding the supply of heat and cooling are fully transparent, and that the cost structure is clearly communicated in order to avoid later legal disputes.

Our business lawyers specialize in landlord and tenant law and assist both tenants and landlords. Would you like to know more about this or do you need advice? Please contact us at info@thelegalcompany.nl or call 020-345 0152.