Judgment: checking social tenants' property ownership abroad (De Zonnige Woonst)

As a social housing company, De Zonnige Woonst wishes to be a good landlord and strives for the lasting satisfaction of its residents. (Prospective) tenants and buyers are central and can count on proper service.

The company is satisfied with the majority of its tenants, who conscientiously pay their rent, maintain their homes and care about the quality of life in their neighbourhood. Nevertheless, it is occasionally confronted with negative experiences. The justice of the peace has now supported it in a concrete approach to unacceptable social fraud.

On 6 June 2019, the justice of the peace in Hamme delivered a remarkable judgment that the social housing sector had been awaiting with more than usual interest.

De Zonnige Woonst had engaged a private asset investigation agency, Bureaubuitenland, to check on site the alleged property ownership abroad of a number of its tenants. In the case of a tenant who had been renting social housing for several years, the ownership of several dwellings was established in addition to a number of building plots. Yet a social tenant is prohibited from owning a dwelling or building plot.

The court ruled in favour of De Zonnige Woonst: the tenant had wrongly and wilfully, in bad faith, withheld information and had as a result enjoyed a social advantage for years to which he was not entitled. The fraud systematically amounts to thousands of euros per year.

The tenants’ arguments concerning discrimination and breach of privacy were swept aside by the court. De Zonnige Woonst acted correctly. What is more, according to the justice of the peace:

It is part of its duty under the decree to provide the government with the necessary guarantees that the housing stock it develops with government subsidies benefits only people who are also legally entitled to it. Carrying out investigations is an essential instrument for this purpose.

The court expressly added that De Zonnige Woonst did not act unlawfully by engaging Bureaubuitenland. The court also did not consider an infringement of the anti-discrimination legislation to have been proven.

Social renting means letting quality housing at reduced rates to those who cannot provide for their own housing. To achieve that aim, the Vlaamse Wooncode (Flemish Housing Code, now the Vlaamse Codex Wonen) and the Kaderbesluit Sociale Huur (Framework Order on Social Renting) impose restrictions on access: the registration and admission conditions. These are intended to ensure that social renting remains reserved for those who depend on it.

The conditions regarding real estate ownership mean that the (prospective) tenant must not own a dwelling or a plot intended for residential construction wholly or partly in full ownership or entirely in usufruct, in Belgium or abroad. Anyone who already has a dwelling at their disposal has no need for a social rental dwelling.

The check for Belgian territory is largely automated on the basis of official sources, such as the land registry. Assets abroad are only checked by means of a sworn declaration (verklaring op erewoord). Some, however, consider their word of honour worth less than a cheaper social rent and all too easily declare that they own no real estate.

De Zonnige Woonst systematically combats every form of domicile fraud and social fraud. The inspection committee (visitatiecommissie) confirmed these efforts in its report of 25 January 2019: tenants are made aware of their duty to report when signing the contract, changes in household composition are actively monitored and there is a cooperation protocol with the police zone. Earlier fraud case files showed that social tenants frequently or for long periods stayed abroad, in combination with foreign property ownership.

After a VRT report on asset investigation abroad, De Zonnige Woonst put it to the test. Several investigation agencies were contacted; after consideration and legal advice, it was decided to work with Bureaubuitenland. At the beginning of 2018, the company received several verification reports confirming the rumours: for several tenants, non-permitted property was attested on the basis of the local foreign land registry records.

On that basis, De Zonnige Woonst served notice of termination on all six tenants concerned. One accepted; five others went to the justice of the peace.

The Kaderbesluit Sociale Huur provides that social tenants must not, during their lease, acquire a dwelling or building plot wholly or partly in full ownership or entirely in usufruct, in Belgium or abroad. Article 52 §3 also requires them to report such an acquisition of their own accord.

Social rental dwellings are scarce. It is part of the remit of all housing companies to allocate them to those who are entitled to them and to exclude those who are not. A company can therefore not be blamed for checking the property ownership condition. Moreover, the sworn declaration that all prospective tenants sign states literally that the declaration will be checked with the competent government department.

Article 38 of the Framework Order provides that the tenant is only entitled to the social rent reduction if he provides all necessary information to the landlord and that information is not fraudulent. De Zonnige Woonst therefore reclaims the reduction granted if it turns out that this was not the case. That reduction quickly amounts to several thousand euros per year.

Some tenants said they felt they were the victims of a discriminatory policy and experienced the investigation as a serious breach of their privacy. They filed complaints with UNIA, the Belgian Data Protection Authority (GBA), Wonen Vlaanderen (Supervision department), the Union of Turkish Bar Associations and the local land registry office in Türkiye (Turkey). De Zonnige Woonst considers that it acted correctly within its remit and the applicable regulations; the judgment found in its favour on this point.

Each ruling relates to a specific case file and offers no guarantee for the outcome of another case. The judgment itself is summarised in Ruling of the justice of the peace of Hamme, 6 June 2019. How the sworn declaration works and why it does not replace a check is explained in the knowledge base: Sworn declaration in social renting.

Source: explanation by De Zonnige Woonst (Hamme) of the judgment of 6 June 2019; regulations via Wonen in Vlaanderen. Quotations translated from the Dutch by Bureaubuitenland; not an official translation.