Can a social landlord employ a private detective to investigate property fraud?

General terms and conditions for the prospective tenant

Article 6.8 of the 2021 Flemish Housing Code stipulates a number of conditions that prospective tenants of social housing must meet:

1. The prospective tenant must be at least 18 years old.
2. The requirements regarding property ownership and income established by the Flemish Government must be met.
3. The prospective tenant may not have balances in current, savings, term, or securities accounts that exceed the limit set by the Flemish Government.
4. The prospective tenant must be registered in the population or aliens register.

Are you married, legally or cohabiting, and do you wish to live in social housing with your partner? Then you must register together as prospective tenants.

Do you wish to live in social housing with someone other than your partner? Then only one person can register as a prospective tenant.

The immovable ownership condition

The second condition of Article 6.8 of the Flemish Housing Code (2021) is the immovable ownership condition. This condition is further elaborated in the Decree of the Flemish Government of 11 September 2020 implementing the Flemish Housing Code of 2021.

Article 6.12 of the Decree stipulates a number of conditions:

• The potential tenant may not fully own a dwelling or plot of land designated for residential construction.
• The potential tenant may not hold full leasehold, building lease, or usufruct rights to a dwelling or plot of land designated for residential construction.
• The potential tenant may not have fully granted a leasehold or building lease to a dwelling or plot of land designated for residential construction.
• The potential tenant may not have fully granted a usufruct to a dwelling or plot of land designated for residential construction.
• The potential tenant may not be a manager, director, or shareholder of a company to which they have contributed any real rights as mentioned above.
  The potential tenant may not own a dwelling or plot of land designated for residential construction to which they have acquired a partial real right within three years prior to the registration date. alienated and to which he held full property rights prior to the alienation.

These conditions apply both domestically and internationally and must be observed throughout the entire duration of the social housing agreement.

The use of private detectives

The landlord of a social housing unit, such as a social housing company, must verify whether this property ownership requirement has been met. However, it is more difficult for the landlord to trace property abroad due to a lack of data exchange.

The prospective tenant therefore often signs a sworn declaration to prove that they do not own a home or building plot abroad. It has often happened that the prospective tenant failed to disclose that they owned property abroad.

In the past, landlords have already employed (foreign) private companies to verify this sworn declaration, which the courts have also accepted.

For example, in a case before the Justice of the Peace in Hamme, the question arose whether the information collected by the private company was lawful and could substantiate a termination of the social housing agreement. The private company had discovered that the social housing tenants owned various properties abroad, which led the social housing landlord to terminate the agreement. The social housing tenants saw this as a violation of privacy regulations. The Justice of the Peace ruled on June 6, 2019, that the social housing provider was indeed permitted to engage an external partner to verify the sworn statement.

In another case, the Justice of the Peace in Antwerp ruled on December 5, 2019, that the transfer of personal data does not constitute a violation of privacy if it is done solely for the purpose of investigating foreign assets. The tenants appealed this, but the Court of First Instance in Antwerp also ruled in favor of the social housing provider on November 9, 2020: the information obtained by the private company could be used to verify the sworn statement and terminate the social housing agreement.

Amendment to the law explicitly allows private detectives.

To create greater legal certainty, the legislator has formally enshrined this principle in the Flemish Housing Code of 2021, effective January 1, 2022.

Article 6.3/2 now explicitly stipulates that landlords can engage private or public partners to inspect real estate abroad. The Flemish government concludes a framework agreement for this purpose, identifying private partners that social landlords could engage. Under certain conditions, social landlords can even receive a subsidy from the Flemish government to cover the costs of investigating foreign real estate.

Article 6.3/1 even provides that personal data may be processed in the context of such an investigation. This investigation therefore does not violate privacy regulations.