In the recent decision by the Supreme Court in a criminal law case involving a landlord who was prosecuted for theft, the Court had to deal with the question whether this indeed was theft or if the landlord was exercising a valid ‘right of retention’ when he took some assets by the renter to secure the payment of the arrears.
The facts of the case can be boiled down to the following. When the renter did not made his monthly payments, the landlord decided to enter the rented apartment. He used his key to enter the apartment and changed the locks. Next to that, he took two bags full of stuff from the renter, a box full of photo albums and some administrative documents. Also, he grabbed a bag of laundry which he later threw away (why is unclear).
Because the renter hadn’t made his monthly payments, the land lord claimed he therefore had the right to keep the two bags of household items and the box of photo albums, under a ‘right of retention’.
The Supreme Court’s decision
The Supreme Court in the end had to judge whether this was a case of theft or valid exercise of the right of retention. The two articles that are of importance to deciding the case are set out below. First there is Article 310 of the Dutch Criminal Code, which defines the act of theft.
Article 310 Dutch Criminal Code – Theft
He who takes (wegneemt) a thing that belongs partially or entirely to someone else, with the view to acquire it contrary to the law (wederrechtelijk toe te eigenen), will be punished, as guilty to theft, with a prison sentence with a maximum of four years or a fine in the fourth category.
The second article that is of importance is the one that defines the right of retention.
Article 3:290 Dutch Civil Code – Right of Retention
The right of retention (retentierecht) is the power attributed to the creditor in certain circumstances designated by legislation, to withhold performance of his obligation to return a good (zaak) to his debtor until the debt has been satisfied.
The two articles appear to exclude the other. A valid right of retention negates the ‘contrary to the law’ provision in the article on theft, whereas if something was stolen it cannot be validly used for a right of retention, as the acquisition of the asset has been illegal.
This wasn’t the first time the Supreme Court had to deal with the question whether something was theft or a right of retention. In 1981; 1986 and 1996 somewhat similar cases had been brought before the Supreme Court. From those cases it becomes apparent that the answer to whether something is ‘theft’ or ‘a right of retention’ hinges on the balancing of the relevant facts and ‘special circumstances of the case’ as the Advocate-General stated in his advice to the Supreme Court (which was followed in this case). Special circumstances can be found “in the nature of the assets that were taken by the landlord, the statement made by the landlord and his/her behaviour afterwards.”
First, did the landlord have the view to acquire the goods contrary to law? The landlord stated he only acquired the goods in order to secure payment of the arrears. However, taking photo albums, laundry and some administrative documents, was not a smart move. These types of assets have an emotional value, not so much an economic one. The sale of these assets would not suffice to discharge the renter of his arrears. They should, based on their emotional rather than economic value, be classified as an instrument of pressure (save for the thrown away laundry, which served no purpose whatsoever). The intention to give these assets back to the renter does not necessarily mean that there was no ‘view to acquire it contrary to the law’. Thus one of the requirements for theft has been satisfied (the view to..)
Second, the Supreme Court then had to assess whether there was a valid right of retention. Because, if there was, there was no theft, as the acquisition of the goods was not ‘contrary to the law’. This case did not provide such a valid right. The starting point is that a right of retention is not validly exercised if that person (in casu the landlord) got the power over the asset illegally. Because the landlord used his spare key in a situation which did not merit such use (it was not an emergency) he gained the ‘power’ over the assets illegally.
The Advocate General gave the following example to illustrate: “A garage holder can in principle, in the event payment for the repairs of a car are not made, keep the car under his power until the owner pays for the repairs. That does not mean that if the garage holder has already given back the car, he would be entitled to, without knowledge of the owner of the car, go to his house and – with or without the use of a false key – take the car and by that way exercise his ‘right of retention’ which there isn’t.”
The Advocate General therefore concluded that the actions of the landlord constituted theft. This conclusion was taken over by the Supreme Court.
Criminal or Civil Law?
‘Isn’t this a mere matter for civil law, rather than criminal law?’ one of the parties purported. The Advocate general struck down this case as being more than a matter between two citizens. He stated:”the situation in which the temporary acquisition of goods belonging to another is used as an instrument of pressure, is not ‘societally desirable’ which in certain situations, such as in casu, could warrant criminal prosecution.”
Whether the Advocate General was followed in its reasoning is unsure, as the Supreme Court used Article 81(1) of the Judiciary Organisation Act which gives the Supreme Court the option to rule without giving its reasoning when the question does not require the answer of a question of law that is in the interest of the uniformity of law or legal development.
The Supreme Court confirmed the reasoning of the Appelate Court which had stated earlier that the suspect (landlord) by ‘acting as lord and master over the assets, he acted with the ‘view’ and that in the current case this is not negated by the fact that he acted with the intention to move the other party (renter) to perform his duties under the contract.
Thus, while the legislative distinction between a right of retention and theft appear clear. As this case shows, the practical difference between the two is not at all this distinct. A thin line indeed.