Rental law: Distribution key and service costs

Questioner

I have been living in a 'free sector rental' apartment since 2010 and separately I rent a parking space in the basement. After asking many times (since 2010) I have recently received a surprising answer that for the lighting in the P-cellar a distribution key of approx. 30% is charged compared to all the electricity consumption in the common areas. I would like to know that if there is a distribution key or should it not also be made known to tenants in the rental contract. After all, it is strange to me that I have two separate rental contracts where it has only recently become clear that the electricity (service) costs for my P-spot are derived from the total consumption in the three residential towers. Unfortunately, I cannot find anything clear about it. Conclusion. Must be a distribution key and according to which right a tenant is aware. Thanks

Lawyer

Yes, the distribution key must be stated in the rental contract, otherwise the tenant may assume that all costs are included. Please also check the general terms and conditions and applicable special conditions carefully.

Questioner

Thanks for the quick response, however. In both general terms and conditions/rental contracts, nothing is included about this. Doesn't such a distribution key affect the core of the service (directly influences the price) and not so much the possible conditions? If I understand you correctly, agreeing on or announcing a distribution key is necessary/obligatory when concluding the contract, so perhaps an obligation under contract law (Book 6)? I believe that there is also nothing included in tenancy law (Book 7) about this, as far as I could find out as a layman searching on Diginet. I would like to be able to clearly refer to a current article(s) of law or the obligation for my landlord. Kind regards,

Lawyer

If the landlord wants to pass on service costs, all services must be agreed in advance and must be clear (at least an indication of the costs, the advance payment, whereby a distribution key is obvious for the use of common areas. You cannot find all this in the law because it is case law. For more information I refer you to a good website http://www.huurgeschil.nl/index.php?page=servicekosten.php

Questioner

Thanks for the quick response, however. In both general terms and conditions/rental contracts, nothing is included about this. Doesn't such a distribution key affect the core of the service (directly influences the price) and not so much the possible conditions? If I understand you correctly, agreeing on or announcing a distribution key is necessary/obligatory when concluding the contract, so perhaps an obligation under contract law (Book 6)? I believe that there is also nothing included in tenancy law (Book 7) about this, as far as I could find out as a layman searching on Diginet. I would like to be able to clearly refer to a current article(s) of law or the obligation for my landlord. Kind regards,

Lawyer

No, it does not affect the core performance, these are additional conditions that must be made known in advance and agreed upon by the parties.

Questioner

Dear, Good reference to rental dispute site but. However, I believe there is no text to be found there that refers to it anywhere and/or indicates case law that states that a distribution key must always be made known when entering into a rental agreement, in contrast, see the text cut below. It is apparently even worse because even if you know nothing about a distribution key, after 2 years it is (tacitly) so-called: agreed. Quite a strange situation and makes your comment that a distribution key must be stated in a rental agreement difficult for me to understand. Therefore, where can I find support to substantiate your assertive comment and simply refer my landlord to it. Thank you very much and regards =========================== Agreed distribution key (from rental dispute) For the obligations entered into on both sides (as with non-liberalised residential accommodation), the lease agreement must be taken as the starting point. For the liberalised residential accommodation, only the provisions of 7:259 paragraph 1 BW apply. This states that the agreed amount, or a reasonable compensation in respect of the agreed distribution key, is due for the costs of utilities (gas, water and electricity on an individual meter). A reasonable compensation refers to the cost price. It is also possible that a distribution key has been used for years in a row for the allocation of the service costs, to which the tenant has never objected. Such a distribution key may then be deemed to have been agreed by the parties. If agreement has been reached on these payment obligations, the agreed amounts apply as the starting point. This is only different if the agreed amounts conflict with the statutory provisions, insofar as these are prescribed by mandatory law. =================================

Lawyer

Distribution keys (important if the tenant does not have a separate meter) >> The distribution of the costs of heat will take place from 1 January 2014 via the calculation stated in the heat law. For independent living spaces, where heat is supplied, the distribution method below will no longer apply. This method is still applicable for supplied gas or electricity. If consumption or the share of service costs cannot be measured per residential unit, the landlord may charge the reasonably estimated costs using a distribution key. An example of a calculation of the costs of utilities in the case where there are no separate meters between the various rented spaces is given in the judgment of the Court of Appeal in 's-Hertogenbosch of 3 July 2012 LJN: BX0425, Court of Appeal in 's-Hertogenbosch, HD 200.091.929. In this case, a tenant of commercial space supplied energy to a tenant of a house located above this commercial space. This house was rented by the same landlord as the landlord of the commercial space. The landlord and the tenant of the commercial space had agreed that €110 per month in energy costs for the upstairs apartment could be offset against the rent due for the commercial space. At the end of the rental period for the commercial space, the landlord believed that he was still owed money by the tenant. The tenant, on the other hand, believed that he was still owed money by the landlord for energy costs. The court found that the landlord had not provided any evidence to support the claim that this was a fixed fee. The court therefore assumed that the monthly amount of €110 was an advance payment. Furthermore, in the opinion of the court, a situation such as the present one, in which a building has been split up and is rented separately by the landlord to two different tenants, while there are no separate meters for energy and water consumption, should have been the starting point for making an allocation of the energy and water costs on the basis of the actual consumption of each unit. If the actual consumption cannot be determined exactly, it should be estimated. This starting point is also in accordance with reasonableness and fairness: it is not acceptable that one tenant should pay for the energy and water consumption of the other tenant. The court then calculates which amount may be charged by the tenant of the business premises. It is unfortunate that in this case the court was not asked to give a ruling on the question of whether a tenant can be required to act as an energy supplier for another tenant of the landlord. It seems to me that the landlord should be responsible for the supply of energy to the various tenants in particular if there are no separate meters for energy and water consumption in a building complex in which various tenants are located and that a tenant cannot be required to act as an energy supplier for another tenant.

Lawyer

The above is just an example, a reasonable estimated compensation should be based on a distribution key. Not all case law is published but you can also search on rechtspraak.nl under distribution key tenancy law.

Questioner

Dear, Good reference to rental dispute site but. However, I believe there is no text to be found there that refers to it anywhere and/or indicates case law that states that a distribution key must always be made known when entering into a rental agreement, in contrast, see the text cut below. It is apparently even worse because even if you know nothing about a distribution key, after 2 years it is (tacitly) so-called: agreed. Quite a strange situation and makes your comment that a distribution key must be stated in a rental agreement difficult for me to understand. Therefore, where can I find support to substantiate your assertive comment and simply refer my landlord to it. Thank you very much and regards =========================== Agreed distribution key (from rental dispute) For the obligations entered into on both sides (as with non-liberalised residential accommodation), the lease agreement must be taken as the starting point. For the liberalised residential accommodation, only the provisions of 7:259 paragraph 1 BW apply. This states that the agreed amount, or a reasonable compensation in respect of the agreed distribution key, is due for the costs of utilities (gas, water and electricity on an individual meter). A reasonable compensation refers to the cost price. It is also possible that a distribution key has been used for years in a row for the allocation of the service costs, to which the tenant has never objected. Such a distribution key may then be deemed to have been agreed by the parties. If agreement has been reached on these payment obligations, the agreed amounts apply as the starting point. This is only different if the agreed amounts conflict with the statutory provisions, insofar as these are prescribed by mandatory law. =================================

Lawyer

This is also not mandatory, but can be imposed afterwards in the sense of a reasonable consideration and may be demanded afterwards or in the meantime by the tenant from the landlord. One does not have to pay more than has actually been consumed unless otherwise agreed in advance. You can hold on to You will find in general the law of obligations and tenancy law. (such as article 7:259 paragraph 1.) Failure to include the distribution key may lead to the assumption that what has been paid monthly is an indication for distribution, or if that is not reasonable, this will have to be done adjusted. It is therefore also in the interest of the landlord that the division is clear, otherwise he may run the risk that the rent is considered inclusive or is estimated at a different division by a judge.

Questioner

The story goes in a different direction than it started. Namely a simple question whether a distribution key should in principle (obligatory) be included in a rental agreement and was about lighting (electricity) in a parking garage. You confirmed that and referred to a certain site. There I found A) that it is apparently not legally obligatory and B) if a distribution key has been used for years without protest from the tenant (how can he know if it is not in the rental agreement!) then this (secret agreement) is deemed to have been agreed. The world upside down for a legal layman. After all, you were not informed of it and if you did not object then this unknown distribution key was agreed between both parties. The fact that not including or making known a distribution key is ALSO in the interest of the landlord is precisely the shadowy problem because see A+B only if it would lead to excessive costs then the free rental sector tenant has to go to court. Let's wrap this up. Despite the fact that you previously stated emphatically that it is an obligation to include/indicate a current distribution key in a rental agreement, the discussion unfortunately results in a different picture. The landlord is therefore in principle free to indicate this aspect or not at the start of the rental and it can easily become an (undesirable) obligation entered into automatically. How crooked can the right be but thanks for your help!