BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Gauthier Callens, Linklaters
Maintenance and Repairs With respect to both retail and common law leases, the Civil Code essentially limits tenants responsibility to minor rental maintenance and repairs but leases often transfer more mainte - nance and repairs responsibilities to tenants, making landlords responsible only for major repairs (eg, structure, roof, etc). Belgian leases commonly adopt usufruct rules, making tenants liable for most maintenance and repairs, sub - ject to normal wear and tear and dilapidation, while landlords are mainly responsible for major repairs on the structure of the property and its An inventory of fixtures is usually drawn up before the commencement date of the lease to establish the original condition of the premises, which is used to assess any damages to the premises and the tenant’s liability and repairs/ payment obligations in that respect at the end of the lease. In the absence of such inventory, proving damages caused by the tenant is chal - lenging for the landlord, as the tenant will then be presumed to have received the premises in the end-of-lease condition. Guarantee Parties commonly agree on a guarantee provid - ed by the tenant as security for its payment and other obligations, such as a first demand bank guarantee, parent company guarantee, or cash deposit, often set at six months’ rent. Force Majeure and Hardship inherent components. Inventory of Fixtures During the COVID-19 crisis, tenants used force majeure as an argument to seek rent reductions or exemptions with mixed success, arguing that government restrictions suspend landlords’ obli - gations to provide premises, causing the tenant to be relieved of its obligation to pay the rent.
The hardship principle, now enshrined in the civil code (under suppletive provisions), allows for contract renegotiation or court interven - tion (leading to adaptation or termination of the agreement) when unforeseen circumstances cause the performance of an agreement to become excessively onerous for a party. Post-COVID-19, real estate contracts frequent - ly include specific force majeure and hardship clauses, deviating from standard civil code pro - visions. Rising Use of Green Clauses Landlords are increasingly incorporating “green clauses” into their standard leases, requiring tenants to use energy-efficient materials in their fit-out works, disclose energy usage, and adhere to other environmentally sustainable practices. 6.5 Rent Variation Leases often include an indexation clause allow - ing annual rent adjustments based on an index and formula determined by (imperative) law. However, as a commercial gesture, the landlord may waive indexation, for a specific period of time or for the entire duration of the lease. See 6.6 Determination of New Rent for retail rent specifics. 6.6 Determination of New Rent Indexation See 6.5 Rent Variation . Renewal of Commercial Lease Under the retail lease law, tenants can request rent reductions or other lease modifications in the context of the renewal process. In the absence of agreements, a judicial proceeding is provided by law, pursuant to which the Judge of the Peace will decide on the adapted lease
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