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The situation

A tenant has caused damage to property, including furniture and appliances, mattresses and walls. The total cost of repair and replacement will be probably around €3000.

The tenant also helped themselves to food and drink that were set aside as private (~€100).

In addition to damage and loss that can be fairly easily quantified, the tenant smoked in the property, and left behind cigarette ends on the floors.

The property was left in a filthy condition (for example, food was left spilled on the floor, and kitchen surfaces were left sticky and stained).

Small personal items that were of low material value but hard to replace (travel souvenirs, gifts) are missing.

The property is a privately-owned home, that was let for a few months while the owners were abroad. Boundaries regarding smoking - forbidden anywhere in the property - and the use of food/drink were set out in advance, in writing.

Questions

  • In general, how do Dutch courts expect the value of replacement items to be calculated? It's simple in the case of a brand-new kitchen appliance that was damaged, but not clear in the case of older items.

  • How should damage such as for example an ink-stain or bad scratches on furniture be accounted for in a financial claim? The item is damaged, but it seems disproportionate to consider the value of the replacing the whole thing. On the other hand, its material value and its enjoyment value have both been lowered.

  • How should items that are of low material value but hard to replace (e.g. a travel souvenir) be accounted for in a claim?

  • Is it possible to put a value in the claim for breaches of contract (smoking) or general decency (spilled food, cigarette ends, chewing gum on the floors), or must all damage be strictly material in nature to qualify?

  • Is it possible to put a value on cleaning and putting right, even if the cost of doing so is largely personal time and effort, and not e.g. professional cleaning or repair services - and if so, how should it be calculated?

  • Generally speaking in The Netherlands, would it be normal practice to begin by starting any process privately (in this case, by writing to the individual setting out a claim) before engaging a lawyer, or to engage a lawyer sooner in the process?

2 Answers 2

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In general, how do Dutch courts expect the value of replacement items to be calculated? It's simple in the case of a brand-new kitchen appliance that was damaged, but not clear in the case of older items.

How should damage such as for example an ink-stain or bad scratches on furniture be accounted for in a financial claim? The item is damaged, but it seems disproportionate to consider the value of the replacing the whole thing. On the other hand, its material value and its enjoyment value have both been lowered.

How should items that are of low material value but hard to replace (e.g. a travel souvenir) be accounted for in a claim?

Is it possible to put a value in the claim for breaches of contract (smoking) or general decency (spilled food, cigarette ends, chewing gum on the floors), or must all damage be strictly material in nature to qualify?

Is it possible to put a value on cleaning and putting right, even if the cost of doing so is largely personal time and effort, and not e.g. professional cleaning or repair services - and if so, how should it be calculated?

All of these would be question of fact to be proven in a lawsuit against the tenant in the appropriate court, if proven.

Generally speaking, the measure of damages would be the reduction in fair market value caused by the destruction or removal or damaging of an item, or the cost of repair, if less (apart from reasonable wear and tear). Sentimental value would be hard (but not necessarily entirely impossible) to recover.

Recovering damages for your own personal time and effort is possible, but much more difficult, than recovering damages hiring someone to do it, because then you have to value your own personal time and effort economically with reference to what someone else would charge. In contrast, if you hire a third-party at arms length, there is a presumption (in law, or in practical reality) that this was the fair market value of those services.

would it be normal practice to begin by starting any process privately (in this case, by writing to the individual setting out a claim) before engaging a lawyer, or to engage a lawyer sooner in the process?

This would probably vary. The first time a landlord did this it would be wise to consult a lawyer who could point out items that might be overlooked, or language that was not forceful enough out of politeness, for example. If there was a security deposit involved, there are also likely to be formalities that are more important to follow.

A large commercial landlord probably has a standard form and checklist for preparing an initial demand letter in this kind of situation worked out with their lawyer, and probably wouldn't consult a lawyer on a case by case basis.

It would be wise to hire a lawyer if it is necessary to commence a lawsuit, which it usually would be if there is not a sufficient security deposit to cover the charges.

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  • Thanks for the answer. It's not clear to me whether this refers specifically to processes, practices and expectations in the Netherlands. Can you indicate in your reply which parts represent general advice or statements, and which are based on Dutch law and legal practice? Aug 9, 2021 at 14:27
  • @DanieleProcida This answer is based upon my general knowledge of how these cases are handled in civil law systems (as opposed to common law systems), of which the Netherlands is an example, together with some subtle limitations in terms of things I don't mention where I know Dutch practice is likely to be exceptional (e.g. I don't discuss which court is involved). But both subquestions are in areas that are not noted for being different between civil law legal systems (or indeed between any Western legal systems), due to the way the codes are written and the OP's non-litigation character.
    – ohwilleke
    Aug 9, 2021 at 19:09
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By far the easiest solution would be to have an independent expert make an estimate of the damage. In Dutch, you'd be looking for a taxateur. There's a national register

All damage claimed must have a cost, but strictly speaking the damage does not need to be material. E.g. reputation damage can be claimed, if your income depends on it. That does not appear to be the problem with your examples - stuff like chewing gum is definitely material damage.

You can put a standard damage amount in your contract. It doesn't even need to be in the contract: many Dutch shops have signs that state the standard damage they will claim from shoplifters. This will hold in court - it would be unreasonable to make cost estimates per individual case, as the cost of making the estimate itself could easily exceed the actual damage.

There's no direct need for a lawyer; the initial procedure is to just send the claim to the tenant. ("Aansprakelijk stellen voor geleden schade"). Do keep track of all communication at this point, in case it does come to a court case.

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