Overview 2016 case law on leases
12/04/2017

Judgement dated 8 January 2016 / Breach of safety, health and housing quality requirements – In its judgement dated 8 January 2016, the tribunal of first instance of East-Flanders (section Ghent) confirmed that in case someone rents out a house which does not comply with the safety, health and housing quality requirements mentioned in article 5, par. 1 of the Flemish Housing Code and article 2, par. 1 of the Residential Lease Act of 22 February 1991, the object of the residential lease agreement is unlawful as contrary to public policy. In such case, the residential lease agreement is incurably void (absoluut nietig / de nullité absolue) and the lease payments must be repaid to the tenant. The tenant must however pay an occupancy fee (bezettingsvergoeding / indemnité d’occupation) for the period during which he/she used the house.

Arrest dated 1 February 2016 / Renewal of commercial lease - Pursuant to article 14 of the Commercial Lease Act, tenants have the right to request the landlord to renew their commercial lease agreements by sending a registered letter or bailiff’s writ as from 18 to 15 months prior to the end of the lease. The request must contain the conditions of the new lease and mention that the landlord will be deemed to agree to the renewal and conditions if he does not respond within a period of 3 months. In the case at hand, the tenant requested the landlord to renew the commercial lease agreement by two registered letters sent in the course of the 18th month prior to the end of the lease. The registered letters were returned unopen, stating “absent” and “not present”. The tenant however waited to inform the landlord about his request for renewal until the end of the 15th month prior to the end of the lease, so that the presumption in article 14 would apply. Given the fact that the parties had a commercial relationship and kept in touch almost every week, the Court of Cassation ruled in its arrest dated 1 February 2016 that the tenant’s conduct constitutes an abuse of right.

Judgement dated 4 February 2016 / AirBnB - On 4 February 2016, the Justice of the Peace of Bruges pronounced the first judgement in Belgium regarding the lease of premises through AirBnB. It was decided that the putting at disposal of leased premises through AirBnB by a tenant to a third party qualifies as a sublease. Such sublease is not permitted if the law (in the case at hand: article 4, par. 2 of the Residential Lease Act) and/or the principal lease agreement prohibits sublease or the sublease happens without having obtained the prior consent of the landlord.

Arrest dated 29 February 2016 / Precarious occupation – In its arrest dated 29 February 2016, the Court of Cassation confirmed that a landlord can conclude a precarious occupation agreement with his tenant at the end of a commercial lease agreement in order to give the tenant the possibility to sell his stocks and to find another business location. Such precarious occupation agreement does not circumvent the mandatory provisions of the Commercial Lease Act.

Judgement dated 1 March 2016 / Termination of lease – In the case at hand, a couple concluded a lease agreement stipulating that both of them shall be jointly and severally liable for the obligations resulting from the lease agreement. In his judgement dated 1 March 2016, the Justice of the Peace of Aalst (1st subdistrict) confirmed that in case one of the tenants terminates the lease agreement, he or she remains jointly and severally liable for breaches of the lease agreement. Real Estate Management  

Arrest dated 3 March 2016 / Liability for loss due to fire – Pursuant to article 1733 of the Civil Code, tenants are liable for damages caused by fire, except if they can prove that the fire is caused without any fault on their part. In its arrest dated 3 March 2016, the Court of Appeal of Liège confirmed that such proof can be “positive” (i.e. proof of the external cause (vreemde oorzaak / cause étrangère)) or “negative” (i.e. proof that the fire could only be caused by an external cause). In the case at hand, the fire was caused by a defect of the internal electrical supply system of the dishwasher in the leased premises. The Court of Appeal ruled that such defect qualifies as a “hidden defect” for which the landlord is responsible (article 1721 of the Civil Code) so that the tenant cannot be held liable.

Arrest dated 29 April 2016 / Renewal of commercial lease – As mentioned above, article 14 of the Commercial Lease Act provides that tenants have the right to request their landlords to renew their commercial lease agreements by sending a registered letter or bailiff’s writ as from 18 to 15 months prior to the end of the lease. The request must contain the conditions of the new lease and mention that the landlord will be deemed to agree to the renewal and conditions if he does not respond within a period of 3 months. In its arrest dated 29 April 2016, the Court of Cassation ruled that the rent proposed by the tenant must be “serious”, that is to say that the rent must be likely to be taken into consideration by the landlord. Moreover, the Court confirmed that, in case renewal occurs due to the absence of any response of the landlord, the conditions of the new lease must comply with the law. Since article 1709 of the Civil Code provides that a lease agreement is “a contractual agreement between a landlord and a tenant under which the tenant obtains the right to use and enjoy (an) asset(s) in return for a regular rent”, it follows that the request for renewal proposing a ridiculously low rent (onbeduidende huurprijs / rent dérisoire) does not comply with the conditions set out in article 14.

Judgement dated 8 June 2016 / Dissolution of commercial lease agreement – In his judgement dated 8 June 2016, the Justice of the Peace of Westerlo ruled that the dissolution of a commercial lease agreement is not only permitted in case the tenant almost never pays the rent on time, unilaterally changes the destination of the leased premises and does not pay the rental guarantee, but also – and mainly – if the tenant applies for judicial reorganisation under the Act of 31 January 2009 on the continuity of enterprises (Wet betreffende de continuïteit van de ondernemingen / Loi relative à la continuité des enterprises) less than one month after the signing (and even before the entry into force) of the commercial lease agreement. In the case at hand, the tenant did not mention anything about his intention to request judicial reorganisation, nor did he inform the landlord about his distressed financial situation.

Arrest dated 10 June 2016 / Renewal of commercial lease – As mentioned above, article 14 of the Commercial Lease Act provides that tenants have the right to request their landlords to renew their commercial lease agreements by sending a registered letter or bailiff’s writ as from 18 to 15 months prior to the end of the lease. The request must contain the conditions of the new lease and mention that the landlord will be deemed to agree to the renewal and conditions if he does not respond within a period of 3 months. Pursuant to article 16, I, 4° of the Commercial Lease Act, the landlord can refuse the renewal in the event of serious defaults by the tenant during the lease. If the tenant does not agree with the landlord’s refusal, he must bring the case before the Justice of the Peace within a period of 30 days. In the case at hand, the landlord made a claim to dissolve the commercial lease agreement based on the tenant’s failure to fulfil his contractual obligations. The claim was introduced as reply to the tenant’s request for renewal and was filed within the period of 3 months as mentioned in article 14. In its arrest dated 10 June 2016, the Court of Cassation ruled that the landlord’s claim to dissolve the commercial lease agreement must be considered as a valid refusal of the tenant’s request for renewal. 

Related : Loyens & Loeff CVBA ( Ms. Lien Bellinck )

[+ http://www.loyensloeff.com]


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