What do the interests of minor children mean for landlords in eviction proceedings?

The interests of minor children are increasingly taken into account in termination and eviction cases, even when the parents of these children cause serious nuisance or commit criminal offences. The subdistrict court of the District Court of North Holland has referred questions on this matter to the Supreme Court.
The case concerned a request by housing corporation Ymere to evict tenants from a rental property. The two tenants caused severe noise nuisance. Neighbours complained about crying children, construction noise, shouting and stomping, a continuously barking dog, and loud music. But it did not stop there. During a police investigation, MDMA, 93 XTC pills, ammunition, and a laptop containing software to 3D print a component of an automatic firearm were found in the property. Initially, the mayor decided not to close the property, citing the interests of the two minor children as decisive. Less than a month later, live ammunition and drugs were again found in the rental home. Ymere sought to terminate the tenancy and filed for eviction in summary proceedings.

What does the Advocate General advise regarding the interests of children in eviction cases?

The Advocate General advises that courts, when ruling on the eviction of a home where minor children reside, must actively and visibly take the best interests of the child into account as a primary consideration, including in default judgments. This means that the court must establish whether children are involved, what the consequences of eviction would be, and whether appropriate alternative accommodation is available. Blameworthy conduct by the parents may be taken into account, but does not negate the obligation to assess the interests of the child. The court may make eviction conditional on the availability of accommodation, but is not required to arrange this itself. However, with the consent of the parties, the court may request information from municipalities or social services. There is no obligation to approach such agencies independently. Whether the civil proceedings should be stayed pending an ongoing administrative procedure depends on the circumstances. Finally, the court may allow eviction subject to the condition that accommodation is arranged, and may designate who is responsible for doing so, provided this is consistent with the overall balancing of interests.

What does this mean for landlords?

For landlords, the Advocate General’s opinion means that in eviction proceedings where minor children are (potentially) involved, a standard approach will no longer suffice. The court will scrutinise more closely the consequences of eviction for the family, and landlords are expected to anticipate this in their litigation strategy. This starts with including the family situation in the writ of summons, but also involves substantiating the landlord’s interest in eviction, identifying possible alternative accommodation, and where possible coordinating with social services or the municipality. In particular, housing associations will need to more explicitly fulfil their social responsibility. The child’s interest does not have to be decisive, but it must demonstrably have been considered.

Note: This is currently only an advisory opinion. The Supreme Court has yet to decide whether it will adopt this advice. Nevertheless, it is prudent for landlords to proceed with due care. Courts are already paying increasing attention to the interests of minor children in eviction cases. For example, a subdistrict court denied termination and eviction in a case involving seven months of rent arrears, due to the acute emergency that eviction would have caused for a 10-year-old child with autism. In another case, a subdistrict court granted the eviction but adjusted the eviction period in light of the children’s interests.
Courts are thus already taking a more critical view of the consequences of eviction for children and this will likely only intensify if the Supreme Court follows the Advocate General’s advice.