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On 8 April 2026, the Administrative Law Division of the Council of State (hereinafter: the Division) handed down an important ruling for property owners and landlords (hereinafter: landlord(s)). In this article, we explain what the case was about and what this ruling means in practice.
The facts
A landlord of a property in The Hague let it to three people with effect from 1 July 2022. Whether this was permitted under the housing regulations remains undiscussed in these proceedings: the case centred on a different issue.
During an inspection by the Haagse Pandbrigade, the municipal enforcement team that tackles housing fraud, unsafe conditions and poor housing, it emerged that the self-contained property had been converted into shared accommodation for as many as thirteen people. The inspection took place on 14 September 2022, just a few months after the tenancy began. Rooms had been created in the property without the landlord’s consent and without the required conversion permit.
As a conversion from self-contained to non-self-contained accommodation requires a permit, the Municipal Executive of The Hague (hereinafter: the municipality) imposed a fine of €10,000.
The municipality took the view that the landlord, who had not actually committed the offence himself, was liable for the offence. He was alleged to have failed to exercise sufficient supervision and was therefore deemed to be the functional perpetrator. This happens frequently, but in our view is by no means always justified. The landlord lodged an objection, but this was declared unfounded. The fine stood.
Proceedings before the administrative court
The landlord disagreed with this fine and argued that (sufficient) supervision had indeed been exercised. He had visited the rented property on several occasions between 1 July and 22 September, including with a technician, and had seen nothing suspicious at the time. When the offence was discovered, he took immediate action and had the tenancy agreement terminated. He could therefore not be held responsible.
The administrative court ruled in favour of the landlord. The offence had been committed shortly after the start of the tenancy agreement; the landlord had acted swiftly and had fulfilled his duty of care. In these proceedings, the local authority further argued that the landlord should not have let the property to three people who did not form a joint household. That in itself would constitute a breach and justify a fine. However, the court dismissed this argument, as the fine had been imposed for a different breach. The case therefore concerned a separate matter. The landlord was also successful on this point.
The court considered that the council “had failed to demonstrate sufficiently that the identified offence should be attributed to the owner as the functional perpetrator because he had failed to fulfil his duty of care.”
It cannot be required that an inspection be carried out every month, and so the fine was dismissed, whilst the council also had to pay the legal costs and compensation for non-pecuniary damage (more than €3,500 in total). A happy ending for this landlord. Or so it seemed.
Appeal to the Division
But that was without the municipality’s reckoning. It did not accept the administrative court’s ruling and lodged an appeal with the Division.
In this appeal, the council argued the same case as before the court: the landlord must be regarded as the functional perpetrator, is held liable for the breach of the Housing Regulations and must pay the fine.
The Division did not share this view. The Division reached the same conclusion as the court, and also found that the municipality could not prove that the landlord had accepted the violation and could therefore be regarded as the functional perpetrator. For functional perpetration, it must also be established that the landlord accepted the breach. This requires that he knew or ought to have known of the illegal situation, or that he failed to exercise sufficient care to prevent it. In this case, the municipality could not demonstrate that the landlord was aware of the presence of thirteen residents without permits. As long as that evidence is lacking, there is also no basis for imposing a fine.
Moreover, even before the decision was taken, the council was aware that the property had been let to three people who did not form a joint household (an argument which the council only raised for the first time during the court proceedings). Nevertheless, the municipality saw no reason to take the position that the landlord was the actual perpetrator of the offence. Such a change in the legal basis during proceedings is contrary to legal certainty where it worsens the legal position of the person concerned. That was the case here, meaning the municipality was not permitted to rely on a different legal basis. The Administrative Jurisdiction Division therefore also dismissed the fine. The landlord does not have to pay the fine because it had not been established that he could be regarded as the functional perpetrator. Furthermore, the municipality must pay the legal costs (estimated at €1,868).
What does this ruling mean?
The ruling confirms that not every landlord can be fined for what happens behind the front door. It is not the case that a landlord, simply because he is a landlord, can be fined as a functional perpetrator. More is required for that; it must be clear that the landlord had the power of disposal to determine whether or not the conduct would take place. Furthermore, the conduct must also be accepted, as the Division makes clear. Even if insufficient care is taken that can reasonably be expected with a view to preventing the conduct, a landlord may be regarded as a functional perpetrator.
The ruling also shows that the local authority cannot ‘shop around’ between different legal grounds. It cannot, at a late stage, choose between imposing a fine on the basis of the property being converted into rooms or on the basis of letting to three people who do not constitute a permanent shared household. If the local authority had wished to do the latter, it should have considered and included this in the decision. Now, the council was too late to do so.
Recommendations
This ruling is good news for landlords. The bar for functional liability is not set at ground level; the landlord must be held responsible before this applies. A landlord would therefore be well advised to ensure that they cannot be blamed. This can be achieved, among other things, by drawing up good, clear tenancy agreements. A good contract can prevent many issues. Prohibitions can be included, and it can be set out what the tenant is and is not permitted to do, so that it is clear to everyone what was agreed at the start of the tenancy.
But that is not the end of the matter. During the term of the tenancy agreement, the landlord must also remain vigilant and exercise sufficient supervision over the occupation and use of the property. According to established case law, a landlord must carry out checks or inspections on a regular basis. This can, of course, also happen when a tradesman needs to visit the property to carry out repairs. In such cases, the landlord can accompany them to inspect the property. It is advisable to make such arrangements in writing (by email, for example), so that there is evidence that a visit to the property has actually taken place. If two people go to the property (the repair technician and the landlord), they can both confirm that the property has been visited.
Finally, we would like to point out that not everything can be ruled out in advance or arranged beforehand. There are always cases where things go wrong, even though everything went smoothly in the run-up to the visit. If, in such a case, the landlord has their paperwork in order (contracts in place, matters recorded in writing), it is up to the local authority to demonstrate that the landlord is nevertheless at fault. This is not straightforward, as is once again evident from this ruling by the Division.
If you find yourself in this situation, please do not hesitate to contact Corten De Geer Vastgoedadvocaten. We have in-house expertise in both tenancy law and administrative law, including enforcement cases of this nature. We can therefore assist you in such instances.
