The blue list, that came from the European Guideline unfair stipulations: a mouth full, but what does it entail?
A stipulation is considered unfair when there is a “disturbance of balance” between the rights and duties of both parties that arise from the agreement, in the disadvantage of the consumer.
The blue list is a list of stipulations that may be considered unfair and is meant to protect the consumer. A tenancy agreement is considered a consumersagreement and therefore, this blue list is applicable. If a stipulation is included in the blue list, that in itself is indicative that it may be considered unfair. A stipulation that’s included in the blue list should therefore not be included in a tenancy agreement.
For the application of the blue list, there are a few conditions, namely it must be:
- standard stipulations that haven’t been negotiated separately (such as the General Terms and Conditions);
- agreements between a professional party (such as a coöperation) and a non-professional person;
- agreements made after December 31st 1994.
If a judge decides a stipulation is in opposition with the blue list, it will be declared non-binding. The stipulation will legally be non-existent and parties must undo any and all occurances leading from said stipulation.
Examples of stipulations in tenancy agreements that could be in opposition with the blue list, are penalty and rental increase clauses. If, for example, a maximum penalty has not been included, a penalty clause may be declared non-binding. As for a rental increase clause, the blue list allows a rental increase if this is limited to an annual increase and in a clearly described manner. However, an additional increase percentage could be in opposition with the blue list.
It’s becoming more and more important to gain professional advice when renting out a property. A professional rental agent can include carefully prepared stipulations in the tenancy agreement and/or General Terms and Conditions, to avoid these being in opposition with the blue list.
