Housing and student rental contracts in corona crisis times.
Both the housing- and student rental contracts cannot be suspended nor terminated due to the corona crisis.
Tenants keep the enjoyment of the rented property. They are therefore obliged to continue to fulfill their (payment) obligations.
However, specific measures have been taken by the Regions to protect tenants, both in the context of normal housing contracts and for students.
2. Rental contracts in Flanders
2.1. Additional measures for housing rental contracts in Flanders
2.1.1 Eviction ban
The ministerial circular dated 7 April 2020 clarified which evictions are specifically covered by the coronavirus ban and which are not.
Evictions that fall under the ban:
All evictions resulting from housing disputes that have been ordered by the court fall within the scope of the prohibition.
No distinction is made as to whether the housing lease dispute arises from a lease contract concluded before 1 January 2019 (on the basis of the Housing Rental Act and the Civil Code) or after 1 January 2019 (on the basis of the Flemish Housing Rental Decree).
All housing rental agreements as well as social rental agreements are covered by the ban.
Evictions are also prohibited temporarily from student accommodation and second homes.
Evictions that are not covered by the prohibition:
The following categories of evictions (non-exhaustive list) are not covered by the temporary ban:
- evictions in the context of temporary measures between (former) partners, in the context of discussions between parents and children or between other persons living at the same address;
- evictions of squatters;
- occupations for pecuniary interest or loan agreements (free of charge);
- evictions for reasons of public safety and public health (such as to ensure cleanliness, health, safety and tranquility on public roads and places and in public buildings;
- evictions on the basis of notarial deeds (e.g. a notarial deed to purchase a house). A new owner of a house - who, for example, has himself terminated the lease of his house and has to leave it - who is unable to enter his purchased house because the previous occupant does not voluntarily leave it, can still seek the eviction of the latter. Alternatively, thie tenant can ask his landlord for an extension of his lease agreement;
- evictions from commercial premises;
- evictions due to lease agreements if the rented premises are not intended to live in such as garages, offices, practice rooms for professionals ,....
Please be aware that even for the evictions that do not fall under the temporary ban, the coronavirus measures must still be complied with. It is therefore important to make sure that evictions can be carried out without problems.
What exactly does the ban mean?
The ban only concerns the execution of the evictions.
The court still can order the eviction, even during the temporary ban, but it will temporarily no longer be possible to execute it.
How long does the temporary ban on evictions last?
The temporary ban ends at the end of the last day of the civil emergency period relating to public health as determined by the Flemish Government.
Since the Flemish Government has set this period at 120 days, the temporary ban on evictions will last until 17 July 2020. Until that date, it will therefore not be possible to carry out evictions from leased properties (see list above).
2.1.2 Extension of rental contracts
In addition, it is provided that the tenant who has his main residence in the rented property during the coronavirus crisis, may request his landlord to extend the rental agreement due to exceptional circumstances by e-mail (instead of by registered letter or bailiff's writ).
Although this request should normally be made at the latest one month before the expiry date of the rental contract, it is now permitted that the request for extension is also made during the month before the expiry date of the lease.
When the rent is extended, this also implies that the tenant must continue to pay the rent and the contractually foreseen charges and costs.
Landlords who have already concluded a contract with a third party and are unable to deliver the property because the former rental contract is being extended cannot therefore fulfil their own contractual obligation and will have to invoke force majeure.
2.2 Measures for housing rental contracts in Brussels
2.2.1 Expulsion ban
In the Brussels-Capital Region, all evictions are prohibited until 25 April 2021.
Until that date, tenants in the Brussels-Capital Region cannot be evicted from their homes, even if the Justice of the Peace has issued a judgment to evict them.
If the rent is extended by this extension, it also implies that the tenant must continue to fulfil his rental obligations and thus continue to pay the rent and the contractual charges and costs.
Landlords who have already entered into a contract with a third party and are unable to deliver the property because the old rental agreement is being extended, cannot therefore fulfil their own contractual obligation and will have to invoke force majeure.
2.2.2. Relaxation of notice periods
All notice periods running on 18 March 2020 or from 1 April 2020 for housing rental agreements - with the exception of student rental contracts - shall be suspended until 18 May 2020.
However, if the tenant has been able to move during the period of suspension or if the tenant and the landlord have reached an amicable settlement, this suspension shall not apply.
Tenants must continue to pay rent during this period of suspension, as long as they occupy the rented property.
This measure results in an extension of the terminated housing rental contract as it is also provided for in Flanders.
2. Exceptional premium for tenants with loss of income
In addition, the Government of the Brussels-Capital Region has also provided for an exceptional premium to be granted to the most vulnerable tenants who suffer loss of income so that they can pay their rent.
The allocation rules are currently being worked out and will be submitted for approval to the Council of Ministers on 24 April.
3. Student rental contracts
Concerning student rental contracts, the fact that the lessons have been cancelled does not mean that the student would (or could) no longer enjoy his room. Nor can force majeure due to the coronavirus be prevented for the student.
The rented property can still be regarded as student accommodation and, moreover, colleges/universities continue to offer education at a distance.
However, some universities have decided that students are no longer allowed to be present in the accommodation rented out by the university. In view of the fact that the ban on the use of the room is imposed by the university itself and not by the government, it is up to the university itself to come to an arrangement to compensate the tenant student.
The University of Ghent provides for a halving of the rent for the month of April, whereas the University of Antwerp has allowed the possibility of early termination (which is only possible in Flanders in case of termination of studies or death of the parents/guardian).
However, private landlords are always free to come to an arrangement with the tenant-student.
However, the student remains obliged to meet his obligations. As stated above, there is no question of force majeure or government intervention.
And in the meantime, the student still has the enjoyment of the room, or at least occupies it so that it cannot be rented out to a third party.
3.2. Additional measures for students in Flanders
3.2.1 Eviction ban
The Flemish Government has provided that there can be no evictions from student rooms until 17 July 2020.
3.2.2 Authorisation to empty the room by the landlord if the tenant is a foreign student
For student rental contracts ending between 1 May 2020 and the last day of the corona crisis measures, which are concluded with a tenant who does not have his or her main residence in Belgium, the Flemish government has provided a solution so that the abandoned room can be emptied.
For example, the landlord can ask the tenant, by registered letter or e-mail with acknowledgement of receipt, to leave the rented accommodation at the end of the rental agreement. The landlord can also announce that he will empty the student's accommodation at his own expense one month after the end of the rental agreement and that he will store the student's household goods for three months at his own expense.
Within this three-month period, the tenant can request the return of his goods without being required to pay a fee. Goods that have not been claimed by the tenant after the expiry of this period become the property of the landlord.
3.3. Additional measures for students in Brussels
3.3.1 Eviction ban
The ban on eviction also applies to student rent.
3.3.2 Shorter notice period
Notice period of (at least) 2 months to terminate student rental contracts and short-term rental contracts for a student house has been shortened to one month.
This derogation only applies to rental agreements concluded before 18 March 2020, the notice of which is given between 18 March 2020 and 30 September 2020.
Students must of course continue to pay their rent during the shortened notice period.
These exceptional arrangements do not apply in case of a different agreement with the owner and the tenant.
3.4. Additional measures for students in Wallonia
3.4.1 Eviction ban
The ban on eviction also applies to student rent.
3.4.2 Termination after 15 March possible
In accordance with the Walloon Rental Decree, a student tenant in Wallonia may terminate the rental agreement at any time, subject to two months' notice period and the payment of an allowance equal to three months' rent to the landlord (allowance not payable in certain cases), but this notice period may not be given after 15 March.
The Walloon Government has provided that in the absence of an amicable agreement on the termination of the rental agreement or a revision of the rent, the tenant student could still terminate the rental agreement after 15 March.
To this end, the tenant(s) must be able to prove that the person(s) who regularly bears the payment of the rent has/have jointly suffered a loss of at least 15% of his (their) income as a result of the corona measures. The loss of income must be demonstrated.
If the loss of income of 15% is demonstrated, the rental agreement can be terminated at any time, but a notice period of 1 month will still have to be respected. This notice period only covers the month following the month in which the notice is given. In addition, the tenant will also owe 1 month's rent to the landlord.
Please, do not hesitate to contact us for information or assistance on 02/747 40 07 or CoronaTaskforce@seeds.law.