Law Column: How to rent in NL?
What to do if the rented motor yacht has an engine failure? Or even if the ship stinks below deck, the stove doesn’t work or the autopilot goes on strike? Good advice is expensive. And even more important: good preparation is needed.
For 20 years, Frits Hommersom has been a lawyer specializing in all topics related to recreational boating. Unfortunately, even in our favorite hobby, things don’t always go smoothly. In his column for Stegfunk.de today he deals with the topic of expert opinions. Important: Frits Hommersom is responsible for the content. Opinions and interpretations do not necessarily have to correspond to the views of Stegfunk.de. This column is provided by Frits Hommersom for Stegfunk.de free of charge in exchange for visibility on the site.
What is tenancy law?
Tenancy law is often more associated with renting houses or rooms. However, tenancy law also applies to renting a bicycle, car or sport boat.
Rent is the contract by which the landlord assumes the obligation to make the rented item or part of it available to the tenant for use, and the tenant agrees to provide consideration.
What are the characteristics of rent?
From the above definition, it is clear that rent has two main characteristics: The landlord makes the use of an object available to the tenant, and the tenant offers consideration to the landlord. If both conditions are met, there is a rental agreement and the rules of tenancy law apply. This also applies if something else is written above the contract (e.g.: usage agreement).
In Dutch tenancy law we have mandatory, semi-mandatory and regulatory legislation. With mandatory law you cannot deviate from the law, with semi-mandatory law you cannot deviate to the detriment of the tenant, and regulatory law says it all: the parties can make their own contractual agreements. It goes without saying that the landlord must provide the leased property, but more importantly, of course, it must be free of defects, so you can have undisturbed use (enjoyment) of the leased property.
What is a defect?
Article 7:204 of the Dutch Civil Code defines what is meant by a defect: “A defect is a condition or characteristic of the object or any other circumstance that is not attributable to the tenant and that results in the object not being able to provide the tenant with the use that a tenant may expect from a well-maintained object of the type to which the agreement relates when the agreement is concluded. The concept of defect is therefore very broad. It includes almost everything that affects the tenant’s enjoyment of the lease. This includes damage to the rental property, overdue maintenance, the presence of vermin or noise or odor nuisance, but also a government measure that (temporarily) prohibits the use of the rental property.
However, in the case of (re)renting movable property such as a recreational boat, it is possible to contractually deviate from the statutory defect regulation.
It will be clear to everyone that depending on the nature of the defect, there is a defect on the part of the lessor. If the engine of a motorboat does not work, you cannot use it. If the sails of a sailboat are missing or the rigging is broken, you cannot sail it. These are what are known as major defects that prevent you from enjoying the boat, and this is essentially the landlord’s responsibility.
If there is a defect and you do not give the landlord the opportunity to fix it, but have it fixed yourself, you are not entitled to reimbursement for the costs incurred.
Tip one: Whenever you notice that something is not in order, inform the landlord and put him in default regarding the repair!
An important provision is that you, as a tenant, are entitled to a proportional reduction in rent in the event of a (significant) reduction in rental income after informing the landlord.
However, this provision is a regulating legal provision, so a landlord can even state in his general terms and conditions that he is not responsible in such a situation. Hiswa terms and conditions do not have a specific exclusion in this regard.
Tip two: It is very important to check a landlord’s terms and conditions to see how they handle the discovery of defects in the boat. Hiswa conditions are therefore favorable
The above is clear, but what if the boat seems to stink or the stove doesn’t work or (also very annoying) the holding tank is clogged ? Then there is obviously a loss of enjoyment, but you can still use the boat as such, the defect is not substantial. So these are borderline issues, because it is not really possible to attach a value to them (say as a percentage of the rental price). Sometimes the provision can be included that these are considered minor defects and that you, as the tenant, are obligated to fix them yourself. However, this too depends very much on an assessment of the severity of the defect.
In any case, you must inform the landlord immediately and give him the opportunity to solve the problem, but unfortunately this often cannot be solved within the short time frame of a vacation.
Tip three: When you inspect the boat before you take it away, make sure you check all these things and go over them with the rental company. The Hiswa terms and conditions also include a specific protocol that should be used to conduct the handover. Then all the main points are recorded.
The above is gray theory, but the day-to-day practice is that you are usually talking about limited amounts of money over which you are not quick to litigate for legal fees. With the result that one is left with a bad feeling and a ruined vacation.
Rental companies affiliated with Hiswa are also affiliated with the so-called Water Recreation Disputes Committee (geschillen Commissie) in The Hague. This is an easily accessible institution where you as a consumer can file a complaint and hold the contractor accountable without a lawyer. Hiswa members are also bound by this ruling, so you can be confident that the ruling favorable to you must be respected by the landlord.
Tip four: “Forewarned is forearmed”. However, thanks to the benefits of the internet, you can do a lot of advance research/preparation, and a boat rental company can be tested through reviews to see if they are reliable. Choose a professional boat rental company that is a member of a professional association rather than a private boat rental company, which will give you more options if a discussion arises.