Flemish Decree on housing leases
Until 1 July 2014, tenancy law was a federal competence meaning that all lease regimes were governed by federal Law.
The Special Law of 6 January 2014 concerning the 6th State Reform, which entered into force on 1 July 2014, transferred the legislative competences regarding retail lease, housing lease (which includes but is not limited to residential lease) and agricultural lease from the Belgian federal level to the regional level.
- Brussels: On 27 July 2017, the Brussels-Capital Region made use of these new competences by adopting an Ordinance on housing leases which entered into force on 1 January 2018.
- Wallonia: A few months later, the Walloon Region also adopted a Decree on housing leases which shall enter into force on 1 September 2018.
On 18 May 2018, the Flemish government also adopted a project Decree on housing leases.
The present contribution aims to provide an overview of the most important changes and innovations brought by the Flemish Decree on housing leases.
The Flemish Decree on housing leases includes, on the one hand, general provisions applicable to all housing leases and, on the other hand, provisions specific to two types of housing leases which were previously governed by the general principles of common lease law, i.e. student housing and co-lease (“medehuur”).
The general provisions applicable to all housing leases is clearly divided into the following categories:
i) General provisions
ii) Provisions related to the start of the lease
iii) Provisions applicable during the term of the lease (e.g. provisions related to the term of the lease, sublease, transfer of lease right, rent, costs and charges, indexation, rent deposit, transfer of the leased premises)
iv) Provisions related to the end of the lease
v) Provisions applicable in case of disputes
The most important changes can be summarised as follows:
a) The Decree provides that the landlord can only require “information that is necessary to verify whether the candidate-tenant can comply with its tenant obligations” from a selected candidate tenant;
b) The Decree sums up the information that should be included in a residential lease agreement (e.g. identity of the parties, start date, duration of the lease, description of the leased premises, rent, charges and costs);
c) The Decree provides that the Flemish Government shall adopt an “explanatory note” (“vulgariserende toelichting”) to which all residential lease agreements must refer. This “explanatory note” (“vulgariserende toelichting”) shall contain information on a number of regulatory topics, such as information on the safety, health and habitability requirements leased premises are required to meet; the importance to draw up a survey report of the premises at the beginning of the lease; the obligation to have a fire insurance; etc.
d) The landlord is obliged to maintain the leased premises in such a way that the leased premises can be used by the tenant for its designated use;
e) The tenant is responsible for all minor repairs. The Decree provides that the Flemish Government shall make a list of repairs which shall always be considered as minor;
f) The tenant is obliged to take out an insurance which covers its liability for fire and water damage. The tenant can either take out his own insurances or, in case the landlord takes out such insurances, pay an indemnity to the landlord. The amount of this indemnity is capped;
g) The Decree clearly provides that the tenant is liable vis-à-vis the landlord for damages and losses caused by its housemates or sub-lessees;
h) The rent deposit cannot be higher than three months of rent.
As mentioned above, the Decree creates a new mandatory legal framework for student housing.
The most important provisions of this new regime are:
a) Student housing lease agreements must be concluded in writing;
b) Sublease and transfer of lease is prohibited, unless a prior written consent from the landlord is obtained. An exception is made for sublease or transfer of lease to a student who participates in an exchange program or is doing an internship. In such cases, the landlord can only refuse to give his approval on the basis of valid grounds. The Decree provides that the tenant remains liable vis-à-vis the landlord in case of sublease;
c) The Decree provides that the rent will include all costs and charges, safe for the costs and charges related to the use of energy, water and telecommunication;
d) The rent deposit may not be higher than two months of rent.
The Decree also contains specific provisions for cohousing in order to ensure legal security for both the occupants of the premises and the landlord.
The Decree provides that the tenant’s spouse or the person with whom he entered into a legal cohabitation (“wettelijke samenwoning”) is considered as a tenant, even if the lease agreement has been concluded prior to the marriage or the start of the legal cohabitation. The tenant has the obligation to provide the landlord with the name of his spouse / the person with whom he entered into a legal cohabitation.
The Decree provides that all co-tenants are jointly and severally liable towards the landlord for the obligations resulting from the lease.
In case the marriage or legal cohabitation comes to an end, the co-tenants must agree on who will continue the lease and provide the landlord with the name of that person. In case of disagreement between the cotenants, the judge shall determine who will continue the lease and the date on which the other tenant is no longer considered as co-tenant.
In case of factual cohabitation (“feitelijke samenwoning”), the tenant and the other person who has his main residence in the lease premises can request the landlord to consider the other person as a co-tenant. If the landlord does not reply on this request within three months, the tenant and the other person who has his main residence in the leased premises can request the judge to recognize the other person as a co-tenant. The judge can only recognize that other person as a cotenant in certain circumstances set out in the Decree.
Entry into force
The entry into force of the Flemish Decree on housing leases is expected on 1 January 2019.
This article is part of the Real Estate Quarterly - July 2018.