Regional tenancy law compared

This article will confine itself to the most striking similarities and differences in the regional rules relating to residential rent. 

As far as retail rent is concerned, federal regulations still apply, except for short-term retail rent or the so-called 'pop-up' rent, which already exists in Flanders, but is still in development in Wallonia and Brussels.  
As to residential rent, the Brussels-Capital Region kicked things off by implementing Title XI 'Housing Rental Agreements' in the Brussels Housing Code (BHC). These new regulations entered into effect on 1 January 2018.                

This was followed by the Walloon Region, which published its Décret relatif au bail d’habitation on 28 March 2018. These regulations will enter into force on 1 September 2018.

Finally, the Flemish government gave its definitive approval for the draft Flemish Rental Decree on 18 May 2018. This Decree would normally also enter into effect on 1 September 2018, but was postponed until early 2019 at the request of the Tenant Organisations.                

Below, we have listed several striking reforms from these new decrees, where the rules in the various regions may look alike, but differ nonetheless.              

1. A widened scope

The first striking widening to be found in both the Flemish and the Walloon legislature is the widening of housing rental law to include moveable property.

In addition to regular residential property, in Flanders and Wallonia the new housing rental law will also apply to caravans and houseboats.

This widening to include moveable property was explicitly included in both decrees. However, the BHC fails to make explicit as to whether moveable property is also covered by its scope.             

2. Requesting information from prospective tenants

The three regions have all issued rules relating to the protection of personal data of prospective tenants.    

According to the Flemish legislature, landlords will only be allowed to request from a prospective tenant 'the documents necessary to ascertain whether the prospective tenant will be able to fulfil his rental obligations'.     

In contrast, Section 6 of the Walloon Housing Rental Decree provides for an exhaustive list of information a landlord may request from prospective tenants. This includes for example surname, first name, date of birth, family composition, as well as proof of payment of earlier rent, in so far as this does not go beyond the three most recent payments. Any information other than listed in the exhaustive list (e.g. payslips) may not be requested by the landlord, unless such request is justified by serious reasons that are proportionate to the objective pursued.

In the Brussels regulations, the information that the landlord is allowed to request from the prospective tenant is listed in Section 200ter of the BHC. This information includes documents for ascertaining the identity as well as the prospective tenant's contracting ability, along with the amount of the financial means at the tenant's disposal or an estimate of such amount. However, in Brussels landlords may take neither the source nor the nature of the financial means into consideration when refusing a home.  

3. Simplified explanation

The three regions have instructed their governments to draw up a 'simplified explanation', in which the rights and obligations of tenants and landlords, the applicable legislation and the contract provisions are explained in plain language.      

In both the Brussels-Capital Region and the Walloon Region it is mandatory to add this explanation to the tenancy agreement. In the Flemish Region it is sufficient for the time being that the contract refers to this explanation. The Flemish Government will determine the manner in which this explanation will be made available to the public. Presumably, it will be available for consultation on the Flemish government website. 

4. The importance of registration of the tenancy agreement                  

Striking differences between the regions can already be observed in relation to the registration requirement.           

Under federal legislation, a tenant may terminate the tenancy agreement without observing a notice period and without owing compensation as long as the landlord has not registered the tenancy agreement. 

The Flemish legislature will maintain this rule. In the event of non-registration, the tenant will notify the landlord of the termination, which commences on the first day of the month that follows the month in which the tenancy agreement was terminated.          

The Walloon and the Brussels-Capital Region apply a different rule in this respect. They maintain the possibility for the tenant to terminate the tenancy agreement without compensation and without a notice period, but the tenant only has this possibility if the landlord is being given notice of default by registered letter and the latter then fails to register the tenancy agreement within one month of the notice of default. In other words, the landlord is afforded a grace period to remedy any errors.                            

In the Walloon Region, an additional sanction is provided for in the event of non-registration; as long as the landlord does not register the agreement, the rent cannot be reviewed or indexed. This sanction is not included in the Brussels Housing Code. 

5. Death of the tenant

Striking differences can also be observed regarding death of the tenant.

Under federal law (Section 1732 of the Civil Code), the tenancy agreement does not end upon the tenant’s death, but continues at the expense of the estate, which can decide at such time to terminate the tenancy agreement in accordance with the applicable law.

The Walloon legislature has abandoned this rule. According to Section 46 of the Decree, the tenancy agreement will be terminated automatically 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 judicial officer. In that event, the tenancy agreement will end on the date on which such vacant nature is established.

The Brussels Housing Code maintains the federal regulations, while adding that the landlord may consider the tenancy agreement as terminated without a notice period or owing compensation if the home has not been occupied by the members of the tenant's family after the death of the tenant and if the rent and/or the rental expenditure remain unpaid for a period of two months after the tenant’s death.

Under the Flemish Decree, the agreement will be terminated automatically at the end of the second month after the tenant’s death, unless the heirs have declared before the expiry of this period that they will continue the tenancy agreement. If the tenancy agreement is terminated automatically, the estate will owe compensation to the landlord in the amount of one month's rent.                                    

6. Possibility to terminate short-term tenancy agreements             

A new feature that did not yet exist under federal law is the possibility for the tenant to terminate a short-term tenancy agreement at any time, provided that a three-month notice period is observed and a termination fee is paid.

A short-term tenancy agreement is a tenancy agreement shorter than three years, to be renewed twice, but its total duration may not exceed three years.

This possibility was included in Brussels, Wallonia as well as in Flanders.

Here, too, several small differences can be observed.           

• For example, this possibility is only available in Brussels if the short-term tenancy agreement has lasted at least six months. Wallonia and Brussels do not have this minimum threshold. 
• Different termination fees :
  • The termination fee in the event of early termination of a short-term tenancy agreement is always one month's rent in Brussels and Wallonia.
  • In Flanders, this fee is one and a half months, one month or half a month respectively, depending on the tenancy agreement ending during the first, second or third years, taking into account the commencement date of the first tenancy agreement.                 
    

7. New regime for student tenants

The three regions also issued new rules regarding student tenancy agreements.        

Both under the Flemish and the Walloon regime, a student tenant will now be able to terminate the tenancy agreement without compensation if he discontinues his studies or in the event of death of one of his parents, if this parent had guaranteed the student's maintenance. 

A two-month notice period applies in these cases.

In Wallonia, students can only terminate the tenancy agreement if they give notice before the fifteenth of March of the current academic year.  This requirement does not apply under Flemish law.    

Under Brussels law, tenants can give notice at any time without giving reasons, provided that a two-month notice period is observed. 

8. Conclusion

The transfer of powers to the regions has resulted in fragmentation of tenancy law. Although it is clear that the regions certainly keep an eye on each other and copy new developments from one another (e.g. student tenancy agreement, possibility to terminate a short-term tenancy agreement at any time), the various regulations are certainly not identical. 

This has not made tenancy law any easier, particularly for owners of properties in the three regions. 

Should you get lost in this tangle of new rules, we will of course always be on hand to assist and advise you.