If you rented an house, apartment, room or any other living accommodation in the past five years and you were charged costs – usually about a month’s rent plus taxes – this might not have been legal. It does not matter what those costs are called, what matters is that you were invoiced an amount by the agency once you were accommodated with a room. Often an agency will name these costs ‘’bemiddelingskosten’’, ‘’administratiekosten’’ or ‘’courtagekosten’’. Names as ‘’contractkosten’’ and ‘’sleutelgeld’’ are also frequently used by agencies. 

 

On a personal account, I dare to say more than 90% of the agencies active on the rental market is either crooked or does not have any clue how the law works. They all are active for one reason; easy money, and they dare to go very far to accomplish maximum profits. Harassment, intimidation, and even violence is business as usual in the agency –  extortion – world. Why? Supply and demand. If you want to do something about it, read along and perhaps there is a very good chance you can file a legitimate claim!

Often an agency (or real estate broker) looks after the interests of the landlord (as well). In legal terms, it does not matter if the agency gets paid by the landlord or not for looking after the interests of the landlord. The interests of a landlord and tenant are, however, not the same and on many ground conflicting. Because there is a conflict of interest between the landlord and the tenant, letting agencies are by law not allowed to represent both parties at the same time, and more importantly, not allowed to claim any costs from the consumer-tenant, see article 7:417 lid 4 BW (Dutch Civil Code) wherein this principle is enclosed.

Fun fact: In Dutch this principle is called; ‘’het dienen van twee heren’’ which roughly translated in English means ‘’the serving of two gentleman’’.

Unfortunately, to a lot of agencies this prohibition of claiming such costs from tenants, is not stopping them to do so, because there is no authority which actively screens the market for male fide agencies and fines them accordingly. No, it is up to the tenant to take steps.

Based on law and jurisprudence, agencies are only allowed to charge either the landlord or tenant. If the agency is representing the landlord (it does not matter if he pays anything), then a tenant-consumer - not a company -  is not obliged to pay any costs to the agency, no matter what the agency tells you.

 

So legally, it matters whom your agency represents: the landlord or the tenant? Usually the first one who contacts the agency about the accommodation is considered to be the one the agency is representing, and therefore the client. Bear in mind, the other way around is also very well possible. If you are certain who the agency was representing, and it wasn’t the tenant, the claim is crystal clear and you can proceed.. right?

Burden of proof

No, not just yet. Because if you – as a tenant – are going to claim the costs back from the agency, you have the burden of proof. You need to proof that the agency was representing the landlord at the time you paid the costs. Well, that does not sound very easy, and it isn’t. Luckily there are some ways to turn the situation in your favor, some of which are outlined hereunder.

1) Representation through advertisement 

The first possibility to proof the agency is actually representing the landlord, is to show the actual advertisement (on the internet or hardcopy) where you applied on. According to a ruling of the Dutch High Court in 2015, an advertisement which has been put up by the agency can be taken as proof that the agency works for the landlord. The only condition is that the actual advertisement did not show the credentials of the landlord in question, so there was no possibility for the tenant to contact the landlord directly. It does not matter if the tenant was able to find the credentials somewhere else (e.g. on another website).

Also advertisements on external websites like Pararius, kamernet and Perfect Housing, and thus runned by another entity than the agency itself can be enough to meet the requirement of proof.

2) Statement made by agency

Although it does not happen very often, agencies or representatives of those agencies may (by accident) have stated to you they represent the landlord (as well). This statement can also be made implicitly. An example of this is when in the tenancy agreement, or letter of intent, the same agency (or affiliate) will act as the administrator of the contract (and thus acting on behalf of the landlord and representing him). The possibilities are endless

The statement does not have to be in writing, but evidence wise it would definitely be better to either have it on paper (including e-mail) or a voice record, or else you as a tenant will solemnly trust that  the agency will confirm to the court they made this statement to you before, and in doing so confirming your claim. Indeed, this is very unlikely and will not happen. But hey, in theory, everything is possible.

3) Statement made by landlord

If the landlord himself states that the agency in question is representing him, the statement itself may be enough to be admissible as evidence. It is not necessary that the landlord paid anything to the agency.

 

These following excuses are often made by agencies not having them to pay the agency fees back. Any one of them is not a legitimate reason why the tenant should have paid the agency fees.

‘’We do not charge the landlord anything’’

It is not necessary for the agency to charge the landlord anything in order to confirm representation of the landlord by the agency.

‘’The tenant had the possibility to contact the landlord by other means’’

Fact is it only matters if the credentials of the landlord were mentioned in the advertisement itself. It does not matter if they could be found somewhere else (on the internet)

‘’We did not put the advertisement on our own website’’

No matter on which website it was posted, if the advertisement did not show the credentials of the actual landlord (and it would only link you the agency instead), this argument will not succeed and it won't be enough

‘’We did work for the tenant’’

Even if they did work for the tenant, it does not matter as long as they work for the landlord as well (the fact there is an advertisement is one way to prove this).

‘’The tenant did not complain at the moment of the payment of the fees’’

That does not matter. Complaining about a payment made can be done up to five years after, without even the necessity to inform the agency earlier about your disagreement.

‘’Our website is nothing more than a digital bulletin board’’

That’s up to the agency to proof. If the advertisement did not show the credentials of the landlord, the website is not a digital bulletin board.

‘’The landlord explicitly signed an agreement that the agency does not represent the landlord’’

This excuse governs the relationship between the agency and the landlord, and cannot be used merely to disguise the representation of the landlord by the agency.

If the excuses your agency is making is not listed here, it doesn't mean it's a good excuse, it just means it's very original and we did not hear of it before. If you think the excuses your agency makes needs to be listed here, just let us know and we will put it on the list!

 

1) Collect the necessary documents

• Invoice regarding the agency fees
• Advertisement itself, or save/print the webpage to PDF
• E-mail correspondence between you and the agency
• Proof of payment

2) Go to www.rentreturn.nl

• upload your contract through the website

3) In-house lawyer determines your legal position for free

• Advice and possibilities

 

Going abroad or are you just not in the mood for taking legal actions?

Then perhaps you would appreciate the possibility to sell your claim for direct €ash.

For more info: [email protected]