“One has to be very prudent about the information on the internet due to mistakes and wrong interpretations that do not account for the exact wording of the law,” said , counsel at DSM Avocats à la Cour during an interview on 22 August 2024. He warned that one may have an interpretation of the law not valid anymore on the back of new case law.
“The law of September 2006 has seen minor adjustments over the years,” stated Martin, whose firm represents several landlords. He observed that the rental contract reform had been in discussion for several years. The main purpose of the new law was to help people finding accommodation and getting their rent guarantee back.
Yet “the most important expected reform was not addressed,” said Martin. Indeed, he thinks that the public was expecting a reform of the . Despite heavy discussions, lawmakers “concluded that it is better to adopt a small reform than none.”
Do check-in inventories result in as many conflict as for the checkout inventories at the end of the contract?
“I have never been confronted with a check-in case… it is systematically at the exit,” said Martin. He continued with a general statement: “You should be meticulous whenever you engage yourself in a contract.”
During an interview on 27 August 2024, , partner at Elvinger Hoss Prussen, commented that check-in inventories may not end in court, but they result sometime in a conflict on the vague description of the damage(s). Should one party ask for unacceptable elements, the other may refuse to sign off under upon justifiable reasons.
There is a presumption of liability for the tenant for everything that has happened during the occupation of the flat
Nickels thinks that the “only way out” is to take pictures as the parties are generally willing to find an agreement to keep the rental contract valid. “Involving a bailiff at that stage is more frequent for commercial offices [than flat rentals].”
Martin suggested that a tenant should make an exhaustive tour of the flat, ask to have photos annexed to the check-in report and not to rely on the good will of the landlord. Tenants are often relieved to have found a flat in the tight Luxembourg market and may sometimes be sloppy during the check-in.
During a conflict with the landlord, “a judge is sovereign in his decision…. it is therefore important for the tenant to provide as much material as possible.” Martin warned: “there is a presumption of liability for the tenant for everything that has happened during the occupation of the flat.”
What are potential consequences for the landlord/tenant for not doing the check-in inventory?
Martin thinks that guichet.lu is right when it writes that “a check-in inventory is required when the landlord demands a guarantee which is almost always the case.” Nickels added that generally: “the tenant takes the largest risk when not requiring a check-in inventory.”
Both lawyers explained that there are legal precedents for cases where there have been no check-in inventories. Martin explained that the civil code states that: “should a check-in report be not executed, it is presumed that the tenant has accepted a flat in good condition (en bon état de réparations locatives).” The tenant “must return it as such.”
It is therefore very important to carry out a check-in inventory, especially when the flat is in a poor state. The tenant may fight back but he will likely lack the evidence that he was not responsible.
Should the landlord refuse to perform a check-in inventory, a bailiff may be brought in by the tenant at the expense of the landlord. An inspection may cost “a couple of hundreds of euros depending on transportation time and the time spend at the flat,” estimated Martin. The tenant may, in theory, claim the cost back from the landlord.
Regarding the risk for landlords, Nickels observed that courts are generally not welcoming to cases brought forward by landlords that have not carried out a check-in inventory. Indeed, the lack of the inspection may result in abuses whereby the landlord attributes pre-existing damage to the actions of the tenant during or at the end of the rental.
Could severe disagreements during the check-in result in the cancelation of the rental agreement?
“In principal, no,” affirmed Martin. “Doing a check-in is not a condition for the validity of the rental contract.” Should a landlord not perform a check-in inventory despite having the obligation in some circumstances the tenant could still involve a bailiff to establish a check-in inventory, and in principle, to request the related fees to be repaid by the landlord as the check-in inventory is a legal obligation when a rental deposit is requested by the landlord. Alternatively, the tenant could even ask a judge to have the landlord ordered to perform this duty.
The landlord provides photos on a USB key, by email or by Whatsapp. Is that good enough to be used during the checkout at the end of the rental?
“Photos do not replace a visual observation of the flat during the check-in,” stated Martin. In addition, he generally recommends printing pictures, annexing them to the check-in inventory report and to having them signed off by both parties with notes, as appropriate. Both lawyers think that photos should accompany each description. “A sole description will lead to interpretation,” said Nickels. Describing a “hole on the wall” is easier and more visual with a picture.
Not every tenant may go into that much detail. Martin noted that a landlord repeatedly having the same modus operandi with several tenants (always providing photos on a USB key after the check-in, for instance) may be used against the landlord in courts.
Nickels explained that Luxembourg law differentiates between the law of evidence (preuve du droit) and the proof of the fact (la prevue du fait). “Should the tenant be in position to prove that he received or sent an email with an acknowledgment of receipt… emails are entirely admissible in court,” stated Nickels. He commented that Whatsapp communications are a bit more challenging as the tenant or the landlord needs to print chats/photos and prove that the telephone number belongs to the other party.
On the pictures provided the various medium indicated above, Nickels suggested that parties should reflect immediately their opposition, especially if a picture is unrelated to the flat or blurred.
Implication for the tenant for not providing a caution in a timely manner
“The landlord may not hand over the keys to the tenant until the caution is provided to the landlord,” as per the rental contract. Martin commented that the tenant would nevertheless have to pay rent as per the contract. “Legal precedents stated that it is the right of the landlord not let the tenant go in until the security is provided.”