RECENT UPDATES IN BELGIAN RESIDENTIAL LEASE LEGISLATION : REGIONAL LEGISLATION
The defederalization of the lease legislation only applies to the residential lease legislation. The commercial lease legislation is still covered by federal regulations. Flanders, Wallonia and the Brussels capital region now have their own rules for residential lease contracts. The regional residential lease legislation came into force on different dates. The Brussels regulation has effect as of 1 January 2018, the Walloon regulation on 1 September 2018 and the Flemish regulation on 1 January 2019. For contracts signed before these dates, the federal rules still apply. This article wishes to give an overview of the main changes compared to the former federal legislation.
I. Scope
Both the Flemish and the Walloon legislation have a broader scope under the new legislation. Not only houses and apartments are covered but also mobile houses and houseboats. The Brussels legislation does not include these.
II. Rental deposit
When signing a lease contract in the Flemish region 3 months of rent will be asked as a deposit. In Wallonia and Brussels region, 2 months of rent is still the rule for the deposit.
III. Before signing the contract : information and protection of personal data
The Flemish law foresees that landlords will only be allowed to request from a possible tenant the documents necessary to ascertain whether the possible tenant will be able to fulfil his rental obligations. The Walloon law provides an exhaustive list of information a landlord may request form possible tenants. The landlord can for instance ask the surname, first name, date of birth, family situation, proof of earlier rent (limited to the three most recent payments). The Brussels law states that the landlord is allowed to ask documents proving the identity of the possible tenant and also his/her contracting ability, along with the amount of the financial means of the tenant. The landlords in Brussels may however take neither the source nor the nature of the financial means into consideration when they refuse a tenant.
IV. Possibility to terminate short-term lease contracts
An important change is the possibility to terminate short-term leases at any time, provided that a three month notice period is given and a termination fee is paid. Short-term leases are agreed for a period of less than 3 years and can be renewed twice but the total duration of the contract may not exceed 3 years. The legislation is not the same in the three regions :
- the termination fee in the even of an early termination of the contract is always 1 month’s rent in Brussels and Walloon region.
- In Flanders, this fee is 1,5 months, 1 month or half a month, depending if the contract ends during the first, second or third year.
V. Death of the lessee
There are large differences per Region when the lesse dies. The federal law did not foresee the termination of the lease contract and thus the contract continued until thee state decided to terminate the lease in accordance with the applicable law. The Brussels law maintains the federal regulation, while adding that the landlord may consider the agreement as terminated without a notice period or compensation if the home has not been occupied by the members of the family of the deceased lessee and if the rent and/or the rental expenditure remains unpaid for a period of two months after the lessee’s death. Under the Flemish regulation, the agreement will be terminated automatically at the end of the second month after the lessee’s death. If the lease is terminated automatically, thee state will owe compensation to the landlord, i.e. one month’s rent. The Walloon regulation foresees an automatic termination, three months after the tenant’s death. If the property is vacant, the landlord may terminate the agreement sooner if he has the vacant nature of the property established by a bailiff. In that event, the lease will end on the date of this establishing.
VI. The registration of the lease
This requirement varies from region to region. Under federal legislation, a tenant may terminate the lease without a notice period and without owing a compensation as long as the landlord has not registered the lease. The Walloon and Brussels region maintain the possibility for the tenant to terminate the agreement without compensation and without a notice period, but the tenant only has this possibility if the landlord is being given notice of defautlt by registered letter and the latter then fails to register the lease within one month of the notice of default. In the Walloon region, an additional sanction is provided, as long as the landlord does not register the lease, the rent cannot be reviewed or indexed. The Flemish region maintains the possibility of ending the contract without notice period nor compensation but the tenant will have to pay the rent of the month in which he gave his or her notification of termination.
