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Can the self-occupation obligation be lifted?

Published on 21-09-2020
Both municipalities and corporations are increasingly imposing a self-occupancy obligation when selling new-build or existing homes. In this way an attempt is made to prevent buy-to-let (buying a house and then renting it out). According to these parties, this has various undesirable effects on the housing market and in neighborhoods.

To date, little case law has been pointed out on a self-occupation obligation and the request for its abolition. The court recently ruled in a judgment of 2 September 2020 on a claim for the waiver of a self-occupation obligation as a perpetual clause. A contribution from Weebers Vastgoed Advocaten.

The case
A housing association sells a home to a private individual. A self-occupancy obligation is included as a perpetual clause in the purchase agreement. The duration of the self-occupation obligation is not linked to a specific duration and applies for an indefinite period of time. The owner and a successive owner must actually live in the house as the main occupant and may not rent it out.

In 2015, the private individual sells the house to another private individual, the self-occupancy obligation and the perpetual clause are also part of the relevant deed of transfer. In 2019, the owner requests the housing association to release her from the self-occupation obligation for a period of five years, because she has to spend a lot of time in Amsterdam and abroad due to work and the travel time is becoming too strenuous for her. According to the owner, selling the house is not an option because the house meets all her requirements and those of her partner. The housing association has indicated that it does not want to cooperate for several reasons.

The owner of the house then requests the court to disregard the self-occupation obligation and the fine on it in the event of a violation or to grant her an exemption for a period of five years.

Assessment framework article 6: 259 paragraph 2 sub b BW
The owner invokes article 6: 259 paragraph 2 sub b BW. On that basis, the court can change or terminate the self-occupancy obligation if the housing association no longer has a reasonable interest in complying with the self-occupancy obligation and it is unlikely that this interest will return.

However, the court agrees with the housing corporation and ruled that the law only requires an assessment of whether the housing corporation has a reasonable interest. The interests of the owner therefore do not play a role.

Importance of the housing association
The owner states that no account may be taken of party intentions that are not expressed in the deed of transfer. However, the court disagrees. According to the court, in order to answer the question whether the housing association no longer has a reasonable interest in the self-occupation obligation, not only must the intentions that appear from the deed of transfer be considered, but other circumstances and interests that may play a role must also be considered. .

The housing association states (in a nutshell) that it aims to guarantee the quality of life in the neighborhood by means of the self-occupation obligation. According to the court, it cannot be said of this that this is not a reasonable interest.

The owner has argued against this, among other things, that safeguarding the quality of life in the neighborhood is not part of the housing association's range of tasks. According to the court, the housing association is indeed allowed to protect the quality of life in the neighborhood, also taking into account the interests of the tenants of the housing association in the neighborhood. She also argued that there is no self-occupation obligation for various streets in the same neighborhood. However, the housing association indicates that it concerns different categories of housing. The court is of the opinion that it is within the policy discretion of the housing association to include a self-occupation obligation in one category and not in the other category.

The court comes to the conclusion that the housing association (still) has a reasonable interest in the self-occupancy obligation, the claims of the owner have therefore been rejected.

It follows from this judgment that it is not easy for the owner of a home with a self-occupancy obligation to avoid that obligation. The bar for cancellation is very high. If you as a municipality or corporation intend to impose a self-occupation obligation or are faced with a dispute about this, it is wise to consider the meaning of the clause for the longer term. If you have any questions about this ruling or would like advice in a similar case, please contact our office.