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In verzet komen...

na verstek te hebben laten gaan?

Verstek laten gaan? Niet zonder gevolgen!

3 minuten mr. Mariëlle Ducaat Tenancy Law for Tenants Tuesday 17 January 2023 2025

Most clients don’t need to be told that it’s unwise for a defendant to ignore a summons to appear in court. Still, it happens with some regularity that a defendant does not appear (defaults). Sometimes because the defendant is unaware that they were summoned to appear in court—perhaps missing the summons in their mailbox. Other times, the defendant chooses not to appear deliberately. This was the case in a recent rental dispute in which I represented the landlord. What happened?

The Case

In this case, I summoned the tenant on behalf of the landlord to appear in court (in summary proceedings). Although the tenant was aware of the hearing, they still chose to default. The tenant’s absence did not prevent the case from proceeding. The case continued, and the judge issued a ruling, only without the opposing party’s defense. If the claims are not deemed implausible by the judge, they are generally awarded, as happened in this rental case. The judge fully granted the landlord’s claims; we won the case. 

Filing an Objection

A default judgment doesn’t necessarily mean “end of story” for the defendant. The law provides an option to file an objection against a default judgment. If the defendant wishes to file an objection, they must take action themselves. Within four weeks from the date the judgment was served, or from the time they otherwise became aware of the content of the judgment, they must file the objection by serving an objection summons to the plaintiff. If the defendant files an objection, the case continues, now with the opportunity for both sides to present arguments. 

The Second Round...

In our case, the tenant filed an objection as well. This was somewhat surprising, as they could have appeared the first time. For their own reasons, however, the tenant chose not to and now needed to serve an objection summons to the landlord. They did so, but to the wrong court. If a defendant files an objection, they must summon the (initial) plaintiff to appear before the same court where the case was originally heard. In this case, the tenant did file an objection within four weeks but summoned the landlord to appear before a different court rather than the summary proceedings court where the case was initially held. 

Although I realized early on that the landlord was summoned to the wrong court, I did not initially inform the tenant of this. The four-week objection period is very strict. If the tenant had not correctly filed the objection within this timeframe, I would win the case on behalf of the landlord not only in the first instance but also in the second, purely on formal grounds. This would be the simplest way for the landlord to resolve the case. Unfortunately, shortly after filing the (incorrect) objection summons, the tenant realized their mistake and issued a corrective summons to amend the initial incorrect summons. This time, the landlord was summoned correctly (before the summary proceedings court). However, by then, the four-week period had expired. For this reason, I requested on behalf of my client that the judge declare the tenant’s objection inadmissible. The tenant argued that this was nonsensical, as they had remedied the defect in the first summons by issuing a second (correct) summons. My response was that the summons to the wrong court was not a defect that could be corrected and that the second summons was issued outside the four-week period. The judge agreed and declared the tenant’s objection inadmissible. 

Additionally, the judge stated in the same ruling that even if the tenant had been admissible in their objection, the tenant’s claims would still have been dismissed. The judge also found, on substantive grounds, that the tenant had severely breached their obligations under the rental agreement, and that the landlord was therefore in the right. 

Conclusion 

Thus, the new year started well for our client, the landlord. With this favorable ruling, on both formal and substantive aspects, the landlord can start fresh. We can add another (procedurally interesting) case to our “cases won” list. Just the way we like it. Here’s to a successful 2023! 

mr. M.S. Ducaat

mr. M.S. (Mariëlle) Ducaat

Jurist en Mediator

Mariëlle adviseert en procedeert op het gebied van Employment Law, Administrative Law, Contract Law en Tenancy Law. Volg Mariëlle ook op LinkedIn. Bereikbaar via ducaat@wolderwijd-juristen.nl of 036 522 7007.

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