TL;DR: potentially bustable apartment due to bad energy label and all-in rent price, but new energy label could jinx this. Not sure which procedure and strategy to follow.
Hi everyone, I have a potentially bustable apartment (currently renting with my boyrfriend) on several grounds:
1. Initial rent assessment under 7:249 BW: normally this apartment complex falls under the vrije sector due to the good energy labels, but because my specific apartment has a C label (invalid because granted before 2021, which was also the reason why it's a C), its points fall under the regulated sector. Best case scenario we could half the rent, according to the point calculation, and get all the excess rent refunded retroactively.
The issue(s):
Firstly, legally, the landlord will probably get a new label once he hears about this from the Huurcommissie, which is very likely a B/A or above, and that will push the total points to the vrije sector. He will also probably appeal if the HC rules in favor of us, which increases the chance of him winning.
Under the current rules the HC does not take into account energielabels acquired after the procedure for 7:249 is started, so that is probably not a problem for us. However, my concern is the courts: given the recently updated HC rules (they started accounting new energy labels for rent reduction procedure under 7:252 BW) and the court rulings (which sometimes extend this to 7:249 procedure and tend to favor the landlords), there is a real chance he brings the case to court, which means the HC decision gets thrown aside, we have to spend lawyer money, and the court rules in favor of him due to the new energy label.
Secondly, this procedure takes a lot of time (we're looking at minimum 3 months until we start the procedure for legal insurance reasons and another 3 months for the HC to decide, plus potentially 3 more months of court appeal) and a higher chance of the court being involved (and him winning). In the meantime we will have to keep paying the steep rent price. We could still afford it but it's quite financially straining on us.
2. Rent split procedure: since the rent price is likely all-in, we could also request a rent-split, which effectively also reduces it by half, independent of the total points. The contract itself does not say if the rent price is bare or all-in (quite vague). It does say that the rent does not include electricity, gas, and water and we have to arrange that ourselves. We have several grounds to believe it's all-in:
- There is some furniture included in the apartment (e.g. fridge, freezer, sofa, oven, microwave, tv stand, tables, washing machine). This is also stated in the contract as coming with the apartment, although not explicitly included in the rent.
- The rent price clause says the fee includes (vague) maintenance and operation costs of the apartment.
The advantage of this is that it's more straightforward and is faster, only around a month. The price difference between this and the initial assessment is negligible.
However, two issues: first, we won't get the excess rent retroactively refunded. Second, we are unsure how bullet proof this is. In other words, we're not sure whether there is a real risk that the landlord could argue that this is only the bare rent and not an all-in price.
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There is also a question of timeline.
We were thinking to start challenging the rent after 3 months so that in case it escalates to court our legal insurance is sure to cover the costs. However, this is risky for the initial rent assessment because a new court ruling or HC rule could come out at any moment (given how they've been quite inconsistent esp. with the newly updated energy label rule) and jinx our case.
In case of the split procedure, we're not sure if it's better to start asap (since there is no retroactive refund) or also wait 3 months.
I know that the huurcommissue also splits the rent with the initial assessment. However, ther is apparently a few cases where, should an apartment's point calculation fall in free sector, the court has ruled in favor of the landlord and discard the split rent altogether. The biggest risk is still the court.
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So ultimately, I'm seeking advice on a) which procedure to follow and b) what sort of timeline to take, and also any other insight/advice from anyone with similar experiences. Any help is greatly appreciated!