The case concerning the moving-out settlement was rejected by the housing court, as the case had not been dealt with by the rent tribunal, even though the tenant had only raised his objections after the case had been brought.
Within a number of areas of law, there are certain complaints and appeals boards that have jurisdiction to rule on matters that could otherwise be brought before the ordinary courts in accordance with the rules of civil procedure.
The basic principle is that the possibility of bringing a case before such a board does not preclude a party from bringing a case before the courts, and any deviation from this requires legal authority. One of these boards, which is given priority over the courts by law, is the rent tribunal. This means that a case within the jurisdiction of the rent tribunal cannot be brought before the courts until it has been dealt with by the rent tribunal.
In a recent ruling of October 4, 2021, handed down by the Western High Court, it was determined that the housing court was correct in its dismissal of a case concerning a move-out settlement, where jurisdiction undoubtedly belonged to the rent tribunal pursuant to section 106(1)(4) of the Rent Act.
The tenant had not objected to the moving-out statement after receiving it or reacted in any other way. The landlord therefore brought the case before the housing court, as in the landlord's opinion there was no dispute prior to the commencement of the case, and it was therefore not necessary to bring the case before the rent tribunal.
First, in the response, the tenant objected to the moving-out statement and claimed that the case should be dismissed by the housing court, as it had not previously been heard by the rent tribunal.
The Housing Court subsequently dismissed the case pursuant to section 106(1)(4) of the Danish Rent Act. The landlord appealed the judgment to the High Court.
The High Court upheld the Housing Court's ruling on the grounds that section 106 of the Rent Act is a rule of jurisdiction which means that the Rent Tribunal must, in the first instance, rule on a number of specified disputes concerning tenancies, including disputes concerning moving-out accounts.
Although the tenant initially objected to the moving-out statement in the response, the tenant was not precluded from raising the objections and thus having the dispute heard by the rent tribunal. The judgment is printed in Ugeskriftet for Retsvæsenet (Weekly Journal of the Judiciary) in U 2022.32 V.
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The ruling basically states that cases falling within the jurisdiction of the rent tribunal must be dealt with by the rent tribunal before the case can be tried in court, and this does not change the fact that the tenant first raises his objections in the statement of defense in the court case.
However, it has previously been possible to bring cases of a debt collection nature directly before the courts without a prior rent tribunal decision, which included, for example, cases where the landlord sent a moving-out statement to the tenant and the tenant did not respond.
This also appears to be in accordance with Section 106 of the Danish Rent Act, which stipulates that the Rent Tribunal shall decide in disputes. The landlord cannot formally bring a case before the rent tribunal if the tenant has not objected or otherwise responded, as there is then no dispute. U 2022.32 V may change this view, but it must still be considered unclear. If it were the case that all move-out settlements where the tenant has not objected or otherwise responded to the landlord's claims had to be brought before the rent tribunal, the rent tribunal would be overwhelmed with cases where, in many instances, the tenant would not respond even during the rent tribunal's proceedings.
This would not be appropriate.
In cases where the tenant does not object or otherwise respond, the landlord may in future – after sending a moving statement and a reminder letter to the tenant – write to the tenant stating that it is assumed that the tenant has no objections to the moving statement and that the landlord therefore feels compelled to bring the case before the courts (which also includes a demand for payment). If the tenant only raises objections after the lawsuit has been filed, the courts may be persuaded that the tenant should be ordered to pay the landlord's legal costs, as the landlord has been "forced" to file a lawsuit as a result of the tenant's failure to respond.
However, it remains unclear whether the courts will uphold the landlord's claim for legal costs.
In addition to debt collection cases, there may also be other cases that can be brought directly before the courts, e.g. where there are very special evidentiary reasons that prevent the rent tribunal from reaching a decision, or where the tenant and landlord, once the dispute has arisen, agree that the case should be brought before the courts instead of the rent tribunal.
If you have any questions about tenancy law or tenant rights in general, you are always welcome to contact CLEMENS' experts in our real estate department.
