Recently, significant changes have been introduced in the Brussels residential lease law. The new legislative developments aim to enhance tenant rights, provide a correction on rent indexation, and impose stricter regulations on eviction procedures. This article explores the key amendments that owners, tenants, and legal practitioners should be aware of.
Preferential right of the tenant
The ordinance enacted on 28 September 2023, which came into
force on 1 January 2024, grants tenants a preferential right in the
event of the landlord selling the property. Applicable to
residential leases of 9 years or more, this right extends to the
tenant's immediate family, including children, spouse/legal
cohabitant, and the children of the spouse/legal cohabitant
residing in the property. A preferential right gives the tenant the
right, when the landlord wishes to sell the property, to be offered
the property first and negotiate the terms of its possible
purchase.
The landlord must notify the tenant of the intention to sell and
the right of preference via registered letter with acknowledgment
of receipt. This letter constitutes an offer to sell, and must
contain the identity of the seller, the address of the property and
its description, the price and the conditions of the sale, as well
as any real rights encumbering the property. Failure to respond
within 30 days results in presumed refusal of the tenant. If
accepted, the tenant must prove residence, and the actual transfer
of ownership and payment occur on the day of the authentic deed. If
the seller subsequently offers more favourable conditions than the
initial offer to a third party, the seller or notary must send a
new offer to the tenant, who has 7 days to respond.
Violation of this right entitles the tenant to take legal action, seeking subrogation against the third-party buyer. Successful actions result in the tenant becoming the new property owner, with a one-year prescription period from the date of sale transcription.
Certain exceptions to the preferential right apply, such as the
sale to direct family members, sale of rights in rem (bare
ownership, right of usufruct, building right etc), and block-sale
transactions involving multiple residential units (no right of
preference on each unit).
The preferential right only applies to decisions to put properties
up for sale sales initiated after the entry-into-force of the
ordinance (i.e. 1 January 2024).
Correction of the indexation stop
Since October 2022, regions have introduced a rent indexation limit, linked to the energy efficiency of the leased property. The three regions have opted not to extend this measure.
Consequently, as of 1 October 2023 (Brussels and Flanders) or 1 November 2023 (Wallonia), contracts that were subject to an index freeze can be indexed again regardless of their energy performance. To prevent double indexation, the regions have introduced mechanisms to maintain the effects of the temporary freeze in the indexation calculation.
These mechanisms are as follows:
" In Flanders and Brussels: Starting October 2023, if the EPC
/ PEB is D, E, or F, indexation is applied with a correction
factor.
" In Wallonia: Starting November 2023, if the PEB is D, E, F,
or G, indexation is based on a new formula.
(Base adjusted rent x new
index)
Adjusted base index
Where:
- Base adjusted rent: rent adjusted between 1 November 2022 and 31
October 2023;
- Adjusted base index: health index of the month preceding the
lease anniversary date between 1 November 2022 and 31 October
2023.
These measures aim to maintain the effects of the temporary freeze
in the calculation of indexation, preventing landlords from
imposing retroactive adjustments.
New rules for eviction procedures
New rules were introduced for eviction procedures in Brussels,
by the ordinance of 22 June 2023, which came into effect on 31
August 2023. This ordinance carries significant implications for
practitioners, particularly landlords, with the legislative aim of
restricting and preventing evictions during the winter
months.
The winter moratorium dictates no evictions from 1 November to 15
March.
However, the legislator has outlined four exceptions to this
principle:
- If the tenant proposes a rehousing solution or has already
vacated the premises;
- If the dwelling is unhealthy or unsafe;
- If the tenant's behavior is the cause of endangerment;
- If the landlord is in a situation of force majeure (e.g.,
personal occupation without rehousing solutions).
The Council of State has rendered an opinion on this ordinance,
deeming the winter moratorium inconsistent with the right to
property. A legal challenge is anticipated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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