Preserving mixed-use units: what is the tenant's position?

The sustainability challenge for apartment complexes is large, but the legal path to it is often complex. In particular, the sustainability of ‘mixed-use’ Owner Associations (VvE ‘s), where both owner-occupants and tenants living, a legal tension regularly arises. Because although the VvE decides on the common exterior and installations, it is the tenant who gets the mechanic to come over. What is the tenant's position in this sustainability drive?

The position of the tenant

The position of the tenant within a VvE is striking. For example, tenants have no formal right to vote in the CoE meeting and cannot have decisions of the CoE overturned by the courts (see e.g. District Court Amsterdam January 27, 2023, ECLI:NL:RBAMS:2023:326). Yet in practice, they can slow down a project considerably.

Tenants are bound by the rules in the division regulations on the use of maintenance of the building (Article 5:120 paragraph 2 BW). This means that they must allow access for work on common parts. But when does preservation become an obligation to ‘tolerate’?

Green is (increasingly) urgent

In the case of preservation, a distinction must be made between urgent work and renovation. ‘Urgent work’ is defined as work that cannot be postponed without disadvantage. If the urgent work is drastic, it may even qualify as a defect within the meaning of Section 7:204 (2) of the Civil Code in rental law. The tenant must then tolerate these works. ‘Renovation’ includes improvements that increase residential enjoyment (see HR 22 April 2016, ECLI:NL:HR:2016:726 and Mr. Huydecoper's note). This usually requires the consent of 70% the tenants (Article 7:220 of the Civil Code).

Whereas things like insulation, HR++ glass and connection to a heat grid were previously often seen as renovations, judges now increasingly mark them as urgent work. The reason? The social need to meet climate goals. For example, the District Court of Noord-Holland (ECL:NL:RBNHO:2024:11673) that a tenant had to allow connection to a heat grid and solar panels simply because of this public interest.

Landlord's move: the obligation of effort

Landlords (such as housing associations, for example) have a best-efforts obligation to remedy defects, even if they are in the common parts of the VvE. They cannot hide behind an uncooperative CoE. The landlord must do everything in its power, including litigation against the CoE, to force repair or necessary preservation.

Even single glass can nowadays be considered a ‘defect’ under circumstances, with courts looking not only at tenant enjoyment but also at the climate interest (see, for example: ECLI:NL:RBAMS:2024:619).

New rights for the tenant in preservation CoE?

Currently, the right of initiative of tenants (Articles 7:215 and 7:243 of the Civil Code) to make their own renovations in a VvE is limited because the VvE must always give permission for such work. However, there is legislation in the works that introduces a collective initiative right. If 70% of the tenants in a complex make an energy-saving proposal, the other tenants (and the landlord) could be bound by it.

Advice for practice

Although the legal reins for landlords seem to be tightening with the greening of the law, communication remains the key. It is wise to involve tenants in a timely and transparent manner. This not only prevents litigation, but also ensures the necessary support for major projects.

Want to know more about sustainability and VvE law? The attorneys at Lexys Have extensive experience with (preventing) VvE disputes and rental law. We can advise you on decision-making within the CoE and the legal position of your tenants.