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Functional offence in case of illegal room conversion and consequences: non-binding statement of penalty table
On 30 July 2025, the Administrative Jurisdiction Division of the Council of State ruled in a case concerning the conversion of independent living space into non-independent living space without a permit.[1]. The ruling is relevant because it (again) provides clarity about the imputation of violations to legal entities.
The owner of the house, consisting of four floors and nine bedrooms, rented it out to a foundation. Earlier, in 2019, a fine was already imposed for illegal room conversion into the same home. Despite repeated rejections of permit applications and an imposed penalty payment, the municipality found again in 2021 that the house had been converted to rooms and that they were rented out to several people.
With regard to offence, the Department has already joined settled case law in criminal law.[2], more specifically the Drijfmest judgment[3]. This ruling determined, based on various criteria, whether an offence can be attributed to a legal person. The ruling of 30 July 2025 reaffirms that the “acceptance criterion” in the Drijfmest judgment also applies to legal entities in administrative law.
In paragraph 5.1., the Section considers that a legal person can be regarded as the perpetrator of a criminal offence if the conduct in question can reasonably be attributed to that legal person. Behavior in the sphere of the legal person may occur if one or more of the following circumstances occur:
a) it concerns an act or omission by someone who works for the legal person either as an employment or otherwise;
b) the conduct is part of the normal business or performance of the legal person;
c) the conduct has been useful to the legal person in his business or in the performance of his duties;
d) the legal person was able to decide whether or not the conduct would take place and such or similar behavior was accepted or used to be accepted by the legal person, according to the actual course of events, including failure to take the care that could reasonably be required of the legal person to prevent the conduct.
Allocation does not require that all circumstances (a to d) exist; one may suffice.
In section 5.2., the Department considers that the owner meets criterion d: the legal person had control over the use of the home. After all, after the previous penalty in 2019, rejections of license applications and an imposed penalty payment, he knew or could know that the offence would continue. Merely having conversations with the tenant without control or written agreements is insufficient. The Department takes into account that the penalty was also imposed for keeping independent living space converted into non-independent living spaces without the required permit and that the owner has allowed the conversion to continue.
In 2024, the Department declared the penalty table of the Housing Ordinance 2020 inbinding due to a violation of the proportionality principle.[4] (see also Housing Journal) #23). The owner states that no penalty could be imposed as a result. However, the Section finds that the power to impose fines remains. Only the height needs to be fixed again. When reviewing, the Board was allowed to comply with the new, differentiated penalty table in the Amsterdam Housing Ordinance 2024, even if it did not apply at the time of the offence (see section 12)
The appeal was upheld, but only in terms of the amount of the fine. The penalty has been reduced from €43,500 to €25,750. However, the rest of the grounds invoked by the owner were declared unfounded.
This ruling is in line with the course previously set by the Department. If you meet one of the Slurry criteria, there may already be a functional perpetrator. A passive attitude, namely failure to comply with written agreements and active supervision, can lead to imputation.
In addition, a penalty table declared inbinding does not expire the penalty authority. A review of the penalty can take place on the basis of new, binding tables, even if they came into force later.
