BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Donald Krols and Astrid Laga, Linklaters
6.17 Right to Occupy After Termination or Expiry of a Lease When a common law lease expires, it is auto - matically terminated, and the tenant is not enti - tled to remain in the premises, unless otherwise agreed. For retail leases, if a tenant without renewal rights remain in occupancy of the leased prem - ises at the lease expiry, a new lease tacitly enters into force for an indefinite duration, which may be terminated by the landlord with at least 18-months’ notice, without affecting the tenant’s right to request renewal. 6.18 Right to Assign a Leasehold Interest In common law and retail leases, tenants can sublease or assign their rights under their lease to third parties, unless restricted by agreement. To prevent adverse effects for the landlord, leas - es often state that the landlord’s prior consent to the sublease or assignment is required. In retail leases, clauses restricting the transfer of the lease are unenforceable if the assignment or sublease occurs in conjunction with a business transfer, unless the landlord or their immediate family members reside in (a part of) the building. Formal procedures must be followed for such transfers. 6.19 Right to Terminate a Lease Leases may be terminated prior to their natural expiry either by the landlord or the tenant under conditions agreed between parties (subject to exceptions provided in the law) or by mutual consent. Common law leases often allow early termina- tion in case of a change of control of a party, transfer of the property/leased premises and
provisions). With respect to residential leases, regional regulations govern the use of properties for natural persons’ occupation, including their primary residence. 6.16 Effect of the Tenant’s Insolvency Lease agreements often include clauses man - dating prompt notification from one party to the other upon the initiation of insolvency proceed - ings and granting the other party the right to terminate the lease under these circumstances. The enforceability of such termination clause depends on various factors, including the type of insolvency procedure – for instance, clauses that allow termination solely because the tenant has sought judicial restructuring are expressly pro - hibited, whereas such restriction does not apply in the case of bankruptcy proceedings (subject to limitations, as express resolutive clauses are forbidden in lease agreements). Usually, tenant’s bankruptcy does not cause the lease to end automatically and landlords have to file a statement of their claims. In the absence of specific contractual provisions, the receiver usually decides on lease termination, but may also decide to continue its performance (eg, if he/she seeks a buyer for the tenant’s business). In case of judicial reorganisation proceedings initiated by the tenant, the latter may request a moratorium, during which it is no longer possible for creditors to use means of execution. In such context, matured debts (including outstanding rents prior to the reorganisation proceedings) are frozen during the moratorium. New debts, including rents accrued following the opening of the judicial reorganisation proceedings are in principle not affected by the moratorium.
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