On 20 March 2026, the Belgian Court of Cassation delivered an important ruling on the requirements for recovering rent indexation payments made in error. The key issue was whether a tenant must always send a registered letter before claiming repayment of rent (or indexed rent increases) paid in excess of what was due. The Court’s answer is significant.
1. What does the law say about recovering overpaid rent?
Under Articles 1728quater, §1 and 2273, second paragraph, of the former Civil Code, a tenant may seek repayment of amounts paid above what was legally or contractually due, for instance, where rent indexation has been applied incorrectly. The legislation required the tenant to first send the landlord a registered letter with a request for repayment. The tenant could then only recover amounts overpaid within the five years preceding that request. From the date of the registered letter, the tenant had one year to initiate legal proceedings.
2. What happened in this case?
The dispute arose from a commercial lease in Wavre concerning premises operated as a dry-cleaning business. The lease contained an indexation clause under which the rent increased annually by 3%, based on the rent payable in the final month of the previous year. During the COVID-19 pandemic in 2020, the tenant ceased paying rent following the compulsory closure of the shop and a sharp drop in turnover. The landlord then brought proceedings before the Justice of the Peace to recover the outstanding rent arrears. In response, the tenant filed a counterclaim seeking repayment of indexation charges which he said had been wrongly applied. At first instance, the counterclaim was declared inadmissible because no prior registered letter had been sent. On appeal, however, that decision was overturned. The appellate court held that filing written submissions seeking repayment could be treated as an equivalent step to sending the prior registered request. The Court of Cassation has now confirmed that approach.
3. Practical implications
This ruling softens earlier case law which treated the sending of a registered letter as a strict procedural requirement. The Court now confirms that a prior registered letter is not invariably required, as equivalent procedural steps may suffice. For landlords, this means that repayment claims may arise more quickly and without prior notice, leaving little opportunity to settle the matter voluntarily or reach an amicable settlement. The provisions at issue form part of the general lease law, so the judgment is relevant beyond commercial leases. It may also affect residential leases, office leases and other lease agreements governed by general lease law. It is important to note, however, that the judgment does not change the limitation period. Even where proceedings are initiated without a prior registered request, recovery remains limited to amounts unduly paid within the five years preceding the claim.
Author(s):
- Jasmina Sadek (Monard Law)
