When a landlord enters into a lease with multiple tenants, it constitutes additional assurance that the obligations under the lease will be met. But what happens if one of the tenants wants to leave the leased property? So what rights does the landlord have? The answer to this question varies depending on the region where the property is located and on the underlying relationship between the tenants. In this article, we discuss the regulations in Flanders and Brussels, limiting ourselves to housing intended as the tenant’s main residence.
The Flemish Residential Tenancy Decree, which applies to agreements entered into from Jan. 1, 2019, and to ongoing oral tenancy agreements, made significant changes with respect to co-tenancy. Written contracts entered into before that date remain subject to the Federal Residential Tenancy Act.
Federal residential rental law
A distinction is made between the regime for married, legal and de facto cohabitants.
For leases relating to property intended as a family home, the rules are the same for married couples and legal cohabitants.
Who can assert rights regarding the lease?
The right to rent the property intended as a family home belongs to both married couples and legal cohabitants. That is, notices, notices and writs concerning that lease must be served on both of them separately or go out from both of them jointly. Both married couples and legal cohabitants are jointly and severally liable for debts incurred for the benefit of the household, as long as they are not excessive. Rental fees include.
What at the end of the relationship?
If the relationship ends, the situation is different depending on whether or not both partners signed the agreement. Even if not both married couples or legal cohabitants signed the lease, it can only be terminated by both of them together.
If both married couples or legal cohabitants have signed the lease, but one of the tenants actually moves elsewhere (without giving notice), he remains jointly and severally liable for all obligations under the lease while it is in effect, regardless of whether the marriage or legal cohabitation has ended. If the agreement is signed only by either of them, then the tenant who did not sign the agreement can leave the premises without serving notice. However, he remains jointly and severally liable for all contractual obligations. There is disagreement in case law about when joint and several liability ends.
“If the lease falls under the Flemish Housing Decree and no new tenant is proposed or accepted, the landlord can still sue the departing tenant for payment of the rent for six months.”
For some judges, this is from the time of the actual divorce, while other judges believe that joint and several liability ceases at the dissolution of the marriage or at the official termination of legal cohabitation.
In the case of actual cohabitation, only the signatories of the agreement have rights and obligations to the landlord and vice versa. The non-signatory(s) cannot invoke protection of the family home.
Flemish Housing Decree
The Flemish Housing Decree also makes a distinction between married couples or legal cohabitants and de facto cohabitants.
Married couples and legal cohabitants
The decree explicitly equates married couples and legal cohabitants. Spouses and legal cohabitants become co-tenants by operation of law. It is irrelevant whether the lease was entered into before or after the marriage or declaration of legal cohabitation. From marriage/legal cohabitation, both partners enjoy the rights but are also bound to also the obligations of the lease. The partner or spouse is not liable for obligations incurred before he/she became a co-tenant.
Upon termination of marriage or legal cohabitation, the tenants should decide who will continue the lease. Tenants shall promptly notify the landlord of the details of the spouse or legal cohabitant who continues the lease and the time of such. If there is no agreement, then the tenants can turn to the judge who will determine who continues the lease as well as the time when the other spouse or legal cohabitant is no longer a tenant. Thus, the landlord has no control over which of the partners will continue to occupy the property.
Regarding the joint and several liability of the departing partner, the situation is different depending on whether one or both partners signed the lease. If only one of the parties signed the lease, there is no joint and several liability if one partner leaves, even if the partner who initially signed the contract leaves. If both partners initially signed the contract, the departing partner is only jointly and severally liable to pay the rent for a period of 6 months after he is no longer a tenant. Thus, this arrangement can be very disadvantageous to the landlord if it is subsequently found that the remaining partner is not sufficiently solvent to pay the rent alone.
“In Brussels, the system of co-tenancy only applies if the parties agree to its application.”
Actual cohabitants The tenant(s) who have their primary residence in the leased property may jointly ask the landlord to agree to a third person also becoming a tenant. If the landlord has not agreed to this within three months, the tenant(s) can jointly petition the court for that third party to become a tenant.
The tenant(s), i.e. the persons who signed the lease or the person recognized as a tenant during the course of the lease, shall be jointly and severally liable to the landlord for the performance of the obligations of the lease.
Any tenant may unilaterally terminate the lease subject to three months’ notice, without owing any compensation.
The departing tenant may propose a new tenant to the landlord and the remaining tenant(s). If the landlord and the remaining tenant(s) have not agreed to this within three months, the departing tenant can ask the court that that person still become a tenant.
After acceptance of the proposed tenant or after a court order accepting the new tenant, the departing tenant shall be released from all his tenant obligations after the expiration of the notice period.
If no new tenant is proposed or accepted, the landlord can still sue the departing tenant for payment of rent for six months.
The Brussels ordinance of July 27, 2017 regionalizing the residential rental contract came into force on Jan. 1, 2018, and largely applies to contracts then in effect. However, the co-tenancy system only applies if the parties consent to its application, although such consent may also be tacit. If the parties do not consent to the applicability of the new provisions, the federal rules, as set forth above, will apply.
Moreover, because of the required agreement of the landlord and the co-tenants, the specific provisions on co-tenancy only apply to leases entered into or renewed since Jan. 1, 2018. We refer to the article on co-tenancy in Brussels that appeared in the April 2018 Owner’s Magazine.
The co-tenancy system is detrimental to landlords. Our association recommends entering into a classic lease agreement that expressly excludes the system of co-tenancy and provides that the obligations arising from the lease are joint and indivisible with respect to the tenant. This clause is provided by default in the VE model contracts.
OPINION OF THE UNITED OWNERS
If you are considering entering into a contract under the co-tenancy system for a rental in Brussels, we recommend that you contact our legal department. If, as a landlord for a property located in Flanders, you are asked to add a “new” tenant to a current lease or to replace a tenant who is leaving with another tenant, you can order the appropriate addendum as indicated on page 2 of each Owner’s Magazine Our legal department has provided in these addenda, among other things, what needs to be done with the existing rental deposit and placeholder.
Source: United Owners, Owner’s Magazine No. 507 dated June 6, 2023