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  • Public law
  • 26-07-2018

The Dutch Ministry of the Interior and Kingdom Relations (Min. BZK) published an Internet consultation on 13 July 2018 regarding amendment of the Service Costs Decree [Besluit servicekosten]. The amendment is intended to clarify that in situations involving block heating, the costs for the supply of heat by lessors may be charged for in the service costs. This clarification will ensure consistency with the forthcoming amendments to the Heating Supply Act [Warmtewet]. 

Since the Heating Supply Act entered into force on 1 January 2014, stakeholders have been of the opinion that there is considerable scope for improving the rules and how they are implemented. In the context of tenancy law, the review of the Heating Supply Act has shown that there is a case of “double protection”, i.e. the Heating Supply Act protects consumers, whereas those consumers are also protected by tenancy law. This leads to uncertainty about the legal position of lessees and lessors, and to increased costs for the latter. One of the challenges is when block heating is involved. 

Under the current Heating Supply Act, when an owner and lessor of commercial real estate rents out a space or a home to which it supplies heat, it may be qualified as a heat supplier for the lessee/low-volume consumer. Prior to the Heating Supply Act coming into force, the costs involved could still be charged for in the rent, because the heating was regarded as an “immovable appurtenance” [onroerende aanhorigheid] of the rented accommodation. Since the entry into force of the Heating Supply Act, this is no longer possible. 

On 3 July 2018, the Senate adopted the bill to amend the Heating Supply Act (amendment following the review of the Heating Supply Act). The amendment alters the scope of the Heating Supply Act. 
Where the supply of heat is inextricably linked to the rent for residential or commercial premises, lessors that supply heat to their lessees will soon fall outside the scope of the Heating Supply Act (pursuant to Section 1a(a) of that Act). Lessors that are supplied with heat via a connection of more than 100 kW and who pass on that heat to their lessees will however be protected by the Heating Supply Act. This means that there will not be a situation in which those lessors are, on the one hand, unprotected and confronted with higher rates but, on the other, cannot charge those rates on to the lessees because the latter are protected, whether or not by tenancy law. 

In order to make this system consistent, it is now proposed (at the request of the Aedes association of housing corporations) that the Service Costs Decree be amended. The amendment will clarify that a lessor may bill the lessee for the costs involved in supplying heat by charging on those costs as service costs. According to the Heating Supply Decree [Warmtebesluit], these costs are based, among other things, on the capital costs for a central heating system, the maintenance costs based on an annual maintenance contract, and the capital costs for a heat exchanger (the amendment to the Heating Supply Act replaces the term “heat exchanger” [warmtewisselaar] by the term “heat supply set” [afleverset voor warmte]). This amendment to the Service Costs Decree therefore clarifies that items such as the central heating system for block heating and the heat exchanger can also be charged for outside the rent, namely in the service costs. In practice, that was already possible because the Service Costs Decree does not contain an exhaustive list. However, the proposed amendment makes that possibility explicit. There will be no change in the provision that the rent assessment committee is competent to deal with a dispute concerning the service costs relating to the supply of heat, in so far as the dispute relates to residential accommodation with a regulated rent.

Presentation of views
Views [zienswijzen] regarding the consultation proposal can be submitted up to and including 7 September 2018. Don’t hesitate to contact us if you would like to discuss this matter.

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