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The lessee is liable for damage or losses caused to the leased
real estate unless it can prove that it did not cause these damage
or losses. The incoming inventory of fixtures is drawn up in the
presence of both parties or their representatives.
• To be liable for deterioration and losses caused by the act of
persons supervised by the lessee or by its sub-lessee (sub-
tenant), if any.
Most lease contracts include an obligation for the lessee to (i)
provide a lease (bank) guarantee and (ii) subscribe to sufficient
insurance coverage against fire.
Usually stipulated in the lease contract: the lessee is entitled to
sublet or assign his/her lease to a third party, unless otherwise
agreed upon and mentioned.
Final comments
• The lease contract binds third parties, including any new
owner, unless otherwise stipulated in the lease contract
(which is unusual) and on condition that the contract
has a “fixed” date (“date certaine”/“vaste dagtekening”).
The registration of the lease—which is mandatory for tax
reasons—will give the lease contract a “fixed” date.
• Explicit dissolution of contract clauses (“clause résolutoire
expresse”/“uitdrukkelijke ontbindende voorwaarde”) do
not apply to lease agreement, i.e., if a party breaches his/
her obligations. This means that only a formal court decision
can have the lease contract declared cancelled and the
contractual relationship dissolved.
• Any lease contract may easily be terminated by mutual
consent, i.e., no formal conditions need to be complied with in
this respect.
Commercial (retail) leases
• BCC’s specific provisions (as described above) will apply to
commercial (retail) lease contracts where the Commercial
(retail) Lease Act (“CLA”) of 30 April 1951 does not deal with
or cover a specific issue.
• The CLA’s provisions are mainly mandatory (“dispositions
impératives/“dwingende bepalingen”), i.e., they apply, as
a matter of principle, irrespective of the agreement by the
parties; the protected party may waive its right to invoke such
a possible invalidity, but once the relevant right has arisen,
that party may invoke invalidity exclusively.
• The CLA applies to real estate lease contracts (except for
a few cases) in which the lessee – with lessor’s consent
– devotes to carrying on a retail business or activity of an
artisan who is directly in contact with the public.
Duration – Rent
• The duration may normally not be less (but may be more)
than nine years; this also applies to sub-tenancies, it being
understood that the latter’s duration may not exceed the
duration of the principal lease.
• The lessee may terminate the agreement at the end of
each three-year period by giving the lessor prior notice of
at least six months before the end of this term; in certain
circumstances (in short: the lessor or one of its relatives is to
start a business on the real estate property) the lease contract
entitles the lessor to terminate the agreement at the end of
each three-year period.
• The parties may terminate the lease contract early by mutual
consent provided that this consent is recorded in a notarial
deed or in a statement made in before a competent judge.
• Regardless of any indexation, the competent judge may –
under very specific conditions and, in any event, on request
of the lessee or the lessor – review or adapt the rent at the
expiration of each three-year period, and this based on the
principles of fairness and equity.
Lease renewal
• The lessee is entitled – with a preferential right over any other
perso – to renew its lease for the continuation of the same
trade, and this as a matter of principle for a period of nine
years.
• This right is limited to three renewals, each for a term of nine
years; however, and under specific conditions, the parties can
agree on a shorter period of renewal.
• The renewal is governed by very specific deadlines and
procedure. The formalities laid down by the CLA must be
strictly complied with, even though the parties might have
already agreed on the renewal between them (i.e., lessor
waives its right to refuse renewal).
• Any disagreement between the parties with respect to the
conditions of the renewed lease contract will be submitted to
a judge who settles the dispute according to the principles of
fairness and equity.
• The lessor may only refuse to renew by invoking one of
the grounds listed in the CLA, and even then an indemnity
payment (“indemnité d’éviction”/“vergoeding wegens
uitzetting”) must be paid in some scenarios.
• This indemnity is set by the CLA and can be equivalent to one,
two, or three years’ rent; for some instances, the judge may
grant more than these sums if the lessee can demonstrate
that the value of its loss is greater than the indemnity set by
CLA.
• An additional indemnity will in most scenarios be due if the
lessor fails to carry out what he invoked as reasons for his
refusal of the renewal.
Renovation/alteration works by the lessee
• For renovation works that permanently change the structure
of the real estate (e.g., the demolition of an interior wall,
etc.) the mandatory CLA provisions apply while the (non-
mandatory) BCC provisions apply to those works that do not
affect the use or the structure of the real estate.
• Under the CLA and even if the lease contract stipulates that
the lessee may not carry out any renovation/alteration works
(as the case may be, without the prior consent of the lessor),
such works that are useful to the lessee’s business whose
costs do not exceed the sum equivalent to three years’ rent
may be carried out by the lessee.
• The execution of such renovation/alteration works is
governed by specific deadlines and procedure in order for the
lessor to validly object to these works, i.e., any disagreement
between the parties with respect to the works must be
submitted before a judge.
Subletting/assigning of lease by the lessee
• Under the CLA, any prohibition (in the lease contract) of
assigning the lease or on subletting the real estate may
not prevent the assignment or sublease from being made
together with any assignment of the business (“fonds de
commerce”/“handelszaak”); if there is any prohibition clause,
a specific procedure needs to be followed.
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Investors Guide to Europe 2015