Cancel a residential lease before the execution of the deed of sale?

If a leased property is sold and the buyer wants to renovate it, the question arises whether the current owner can terminate the current lease on behalf of the buyer.

The underlying rationale behind that question is whether there is scope for accelerating the 6-month notice period required when giving notice for major renovations. By having the current owner-landlord already give notice, the buyer would be able to get to work more quickly afterwards.

However, the current owner may not simply cancel on behalf of the buyer. After all, it is the buyer who is invoking the notice scheme for major renovation works (with all the associated conditions). Consequently, he is obliged to ensure that these conditions as well as subsequent realization of the termination motive are met.

By the way, the same applies to the notice for personal use, the current owner cannot possibly give notice for personal use, as he/she (or a relative) will never effectively occupy the property, given that it is being sold.

One must take into account the special protection provided for in Article 9 of the Housing Rent Act and in Article 38 of the Flemish Housing Rent Decree. This protection is that the buyer can enter into the rights and obligations of the seller at the earliest at the time of the execution of the authentic deed. If the transfer of ownership occurs even later than the date of the authentic deed, entry into rights and duties will not be possible until then.

In other words, the buyer cannot cancel earlier than the time of the execution of the authentic deed. This remains true even in cases where the lease provides for a right of eviction upon alienation. Such clause is contrary to the residential lease law and, consequently, will always be disregarded.

Regimes other than residential rental

In regimes other than residential leases (leasehold, common leasehold), such protection for the tenant is not expressly provided for, and it may be possible to provide in the private sale agreement that the ingenuity is already in place when the compromise is signed. In that case, the buyer can cancel already then. Such clause, can but does not occur so frequently. In any case, it should be written out with the utmost care.

Source: United Owners, Owners Magazine No. 506 – May 5, 2023


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