Tenlaw – Role of the EU
The Idea of a „European Tenancy“
Christoph Schmid
- Concept
A European Tenancy (ET) would be a model tenancy contract inspired by common European principles of fairness and of an adequate balance among the parties. However, the ET could not be a uniform contract model but would need to be adapted to the legal requirements of each EU Member State so as convert it into a lawful and enforceable agreement (such an adaption might not, however, be possible with all principles in some Member States such as NL or Sweden due to contrary mandatory internal provisions). Ideally, this “national concretization” of the ET should be done by landlord and tenant associations acting together under the auspices of European umbrella assocations (such as IUT), to give it a maximum of weight. Alternatively, it could of course be done also by research institutions etc (so, the Tenlaw teams might actually elaborate ET drafts!). An ET should work as a “European quality label” which ensures basic standards of fairness especially to European immigrants; but it might indirectly also enhance the fairness level for “internal” tenancy contracts. An ET should cover all the matters dealt with in our “Tenant’s Rights Brochure”. Member States should be encouraged to promote ETs, e.g. by providing tax advantages to landlords like in Italy.
- European Principles
Core principles:
-Duration: minimum 3 years; termination by landlord before possible only for important reasons in the sphere of the tenant (default with rent payment for at least 2 months; anti-social behavior confirmed by a court/ other judicial mechanism); termination by tenant possible for important reasons (e.g. standards of inhabitability no longer met) or within a delay of about 6 months
-The 3-year tenancy is renewable (without limitation, i.e. even many times) unless the owner proves a legitimate interest for different use of dwelling (e.g. individual use for landlord or close relatives; different economic use of building etc), to be communicated at least 6 months before the expiration of the contract
-Rent: initial rent must not exceed rent for comparable dwellings (and earlier rent charged for the dwelling) by more than 20% (or market rent measured by other means such as statistical levies à la Mietspiegel)
-During the contract, rent increases should be limited to the inflation index (or similar device such as construction cost index in France)
-An effective mediation mechanism (competent to deal with all contractual issues including an eviction procedure) should be agreed upon in the contract, as in most States the public court system is too slow and costly
-Eviction:
- Period of grace for paying tenants which cannot leave the property immediately due to important private reasons
- “Submission to immediate enforcement “ in contract to speed up eviction procedure, in particular in case of rent payment default
Further principles:
-Utilities must be made available by landlord irrespective of who concludes the contract with the utilities company ; no stop of supply in case contractual duties are not met by tenant
-No “lock out” in case contractual duties are not met by tenant
-Deposit max. 3 monthly rent instalments; to be kept by landlord on “fiduciary bank account” with usual interest for tenant; deposit to be paid back within 2 months after termination of contract
-Landlord is responsible for all reparations; only small repairs (up to 50€) or refurbishment measures reflecting ordinary wear and tear (e.g. painting the walls e.g. every 4 years) may be shifted to the tenant
-Subletting generally allowed unless there are important reasons against it (or against the person of the selected subtenant)
-Right of rent reduction in case of important and long-lasting disturbances
-Landlord must not enter the dwelling except in cases of danger
Typical “national system failures” could be addressed directly: e.g. landlord must consent to the dwelling being the tenant’s official domicile; prohibition of “retaliatory eviction”.