Where are the statutory rights and obligations in commercial leases to be found?

A tenant or landlord who wants to take action must first know their rights. But where exactly are they to be found? Commercial lease legislation in Belgium is spread across various sources, so it is not always clear which rules apply and which provisions take precedence. This article brings clarity.

In this article you will discover, among other things:

• where the general lease rules are found in the Civil Code;
• exactly which provisions are found in the Commercial Lease Act of 1951;
• what protection the commercial tenant receives through specific derogations from the general law of lease;
• how case law supplements and clarifies commercial lease legislation; and
• why these dispersed sources together form the complete framework for commercial leases.

Where are the rules on commercial leases to be found?

The rules on commercial leases are spread across three major legal pillars: the general lease regime, the specific Commercial Lease Act of 1951, and case law. Below is an overview in clear language.

The general lease regime

The basic rules for leasing immovable property are found in the Civil Code. These rules are called the general law of lease. They apply only insofar as they do not conflict with the specific provisions of the Commercial Lease Act.

At present these rules are still found in the Old Civil Code:

• Art. 1708–1712: general provisions on lease
• Art. 1714–1762bis: rules on the lease of immovable property

In future these provisions will move to the new Civil Code, more specifically Book 7 – Special contracts. The bill (document 56-746/001) can be consulted on the website of the Belgian Chamber of Representatives.

The specific commercial lease regime

The Commercial Lease Act of 30 April 1951 forms the heart of commercial lease legislation. This Act applies only to classic commercial premises: shops, hairdressing salons, hospitality businesses and other places to which customers have physical access.

What does the Commercial Lease Act regulate?

The Act contains rules on, among other things:

• a minimum term of 9 years (art. 3);
• the tenant’s right to carry out certain alterations (art. 7–9);
• the right to transfer or sublet together with the business (art. 10–11);
• protection upon sale of the premises (art. 12);
• up to three lease renewals of 9 years each (art. 13–15 and 18–20);
• restrictions on refusal by the landlord (art. 16, 21–24);
• eviction compensation in certain cases (art. 25).

Why does this matter?

The Commercial Lease Act primarily protects the commercial tenant, so that they can:

• build up a customer base;
• recoup investments;
• not be suddenly evicted from the premises.

The Act also creates certainty for the landlord: commercial premises usually remain let for a long time and retain their value.

A baker who sells their business may transfer their commercial lease to the new baker. Even if the agreement prohibits this, this right continues to apply under the Commercial Lease Act.

The role of case law

Not every situation is covered word for word in the Act. That is why case law plays an important role in interpreting commercial lease rules.

Courts rule on, among other things:

• disputes about rent review;
• conflicts over alteration work;
• interpretation of the conditions for a commercial lease;
• questions concerning transfer, subletting and eviction.

Case law has no formal legislative force, but it does provide guidance for applying the Commercial Lease Act in practice.

The specialists at Handelshuurloket can advise on the significance of case law in specific commercial lease disputes or when preparing proceedings.

The contract

Although the lease contract is strictly speaking not a statutory source, it naturally does contain provisions on the specific arrangements between tenant and landlord. Importantly, these contractual rules may not deviate from the mandatory provisions of commercial lease legislation. A clause that conflicts with the law is in principle not valid.

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