How can the landowner terminate a farming lease?

1. Cases in which the landowner may terminate a lease

1.1 When he wants to use the property in accordance with its final destination

First, the landowner may terminate in the following cases when he wishes to use the property in accordance with its final destination. 

This is the case when the farming lease agreement:

1° relates to land which, due to its location at the time of the agreement, without prior road works having to be carried out, had to be considered as building land or land intended for industrial purposes, provided that it is specified as such in the farming lease agreement;
2° relates to land on which there are no buildings and which, at the time of termination, without prior road works having to be carried out, should be considered as building land or relates to land, whether or not built on, located in a mining area. If land located in a mining area is subject to a mining obligation for the landowner or if a mining permit was granted, the person who obtained the mining permit shall enter into the rights and obligations of the landowner;
3° relates to land which, due to its location, should be considered as land for industrial purposes at the time of each renewal of the lease, provided that the landowner has notified the tenant thereof at least 3 months before the end of the current lease period;
4° relates to land that requires prior road works and can be considered as building land or land for industrial purposes, either at the start of the farming lease provided that it is specified as such in the farming lease agreement, or at the time of a renewal of the farming lease provided that the landowner has notified the tenant thereof at least 3 months before the date of a renewal; 
5° is entered into with a public administration or a legal person under public law and relates to land that, prior to the conclusion of the agreement, was expropriated or acquired by that administration or legal person under public law on the basis of an expropriation decision; 
6° relates to land expropriated by a public administration or a legal person under public law after the conclusion of the agreement;
7° relates to land that will be used for afforestation or nature realization if all the following conditions are met:

(a) the land has a joint and contiguous area of at least 0.5 hectares;
(b) the afforestation or nature realization will be maintained for a period of at least 24 years;
(c) the land is located in:

• either an area designated on a definitively adopted spatial implementation plan and falling under the category of area designation "forest area" or "nature area", mentioned in the Annex to the Flemish Government decision of 11 April 2008 on the form and content of spatial implementation plans;
• either one of the following areas designated on a regional plan, a general development plan, or a special development plan: "woodland area", "green area", "nature area", "nature area with scientific value", "nature development area", or "nature reserve";
• or a special protection area as mentioned in the decree of 21 October 1997 on nature conservation and the natural environment.

(d) in the case of afforestation not carried out under the obligation of compensation mentioned in the Forest Decree; 

8° relates to land that will be used for afforestation or nature realization if all the following conditions are met:

1. the farming lease was entered into with a municipality;
2. the afforestation or nature realization relates to land with a contiguous surface of at least 0.5 hectares;
3. the afforestation or nature realization will be maintained for a period of at least 24 years;
4. the afforestation or nature realization has been approved by the municipal council;
5. the landowner has not himself designated the land as an agricultural area in a spatial implementation plan;
6. in case of afforestation, it is not done under the obligation of compensation mentioned in the Forest Decree.

1.2 When he wants to use a single plot of land for family purpose

The landowner may also terminate the lease at any time if he wishes to use an attached piece of land not exceeding 20 acres, which is adjacent to his main residence for family use. If a dispute arises with the tenant about the location of that land, the court will take a decision.

1.3 When a specific permit has been issued for the leased land

The landowner can terminate the lease at any time if a permit has been issued for the leased land for: 

• the exploration or extraction of hydrocarbons,
• the prospection or storage of carbon dioxide as part of geological storage, or
• for the exploration or extraction of geothermal energy.

The holder of the license is then subrogated in all the rights and obligations of the landowner for the purpose of terminating the current lease.

In all such cases, the landowner must respect a notice period of at least 3 months, extended if required in order to give the tenant time to harvest the growing crop.

2. The Farming Lease Decree provides for new grounds for termination 

Compared to the Farming Lease Law, the Flemish Farming Lease Decree anchors two additional termination options of the farming lease, namely for afforestation and nature realization.

Under the Farming Lease Law, a farming lease could already be terminated by a public administration for reasons of afforestation, for which the administration in question then invoked the termination option in the public interest. Case law followed the administration in this. The Flemish Farming Lease Decree concretizes this termination option.

New is that the landowner can terminate the farming lease in order to alienate all or part of the leased property if all of the following conditions are met: 

1. the farming lease relates to land;
2. the termination is given by the end of the current lease period;
3. the termination is not given during the first lease period, unless the first lease period has a duration of at least 18 years;
4. the termination option is expressly included in the lease agreement.

3. Termination for serious reasons is also possible

At the end of a lease period, the landowner can terminate the lease for serious reasons. These serious reasons are listed exhaustively in the Decree and are as follows:

1° the landowner expresses the intention to personally exploit the leased property wholly or partially himself or to transfer the exploitation thereof wholly or partially to one or more privileged family members; 
2° the landowner intends to merge one or more leased parcels for which the farming lease has been terminated with parcels that he leases to another tenant, provided that this operation is necessary to satisfy an indisputable economic or family interest and that the viability of the incumbent tenant's farm is not jeopardized; 
3° the exchange of parcels of land leased by the same tenant to different tenants, with the aim of forming re-allotted farms; 
4° the division of the farm into two or more new farms, either for serious economic reasons or for social reasons, provided that the viability of the incumbent tenant's farm is not compromized; 
5° profound changes in the composition of the tenant's family as a result of which the business opportunities of the leased property are seriously threatened; 
6° depreciation of the leased property due to poor vegetation or serious negligence in maintenance at the expense of the tenant of the leased buildings; 
7° serious insults or acts of manifest hostility by the tenant against the landowner or against members of his family living under his roof; 
8° condemnation of the tenant for acts likely to damage the trust of the landowner or to make normal relations between the landowner and the tenant impossible; 
9° the use of the plots themselves by a public landowner for specific purposes of general interest; 
10° the use of plots as building land or land for industrial purposes, provided that the plots are to be considered as such due to their location at the time of termination.

If the public landowner is not a municipality, and the farming lease is terminated for the above-mentioned reasons of public interest, and the stated reasons of public interest concern afforestation or nature realization, then the land must have a combined contiguous surface of at least 0.5 hectares and the afforestation or nature realization must be maintained for at least 24 years. 

If the public landowner is a municipality, it is required that the lease agreement was entered into with the municipality, that the land has a combined contiguous surface of at least 0.5 hectares, that the afforestation or nature realization is maintained for at least 24 years, that the afforestation or nature realization has been approved by the municipal council and that the municipality has not designated the land as an agricultural area in a spatial implementation plan.

The notice period that the landowner must respect in the above-mentioned situations 1° through 8° is at least 2 and no more than 4 years. In the termination events under 9° and 10°, the landowner must respect a notice period of at least 3 months, which is extended to give the tenant time to harvest the growing crop if necessary.

4. Termination options from the third lease period onwards 

The landowner can terminate the lease as of the third lease period if he wishes to exploit the leased property himself or if he wishes to transfer the exploitation of the property entirely to one or more privileged family members.

The landowner must then respect a notice period of at least 3 years and a maximum of 4 years.

5. What about leases of at least 27 years? 

The parties can contractually agree on a lease of at least 27 years.

The landowner can terminate the lease at the end of these 27 years to operate all or part of the leased property personally or transfer its operation to one or more privileged family members. This must be a personal and actual exploitation for at least 9 years by the persons specified in the notice of termination of the lease, or if it was a legal person, their working partners, the committed partners, or the directors and not only their appointees.

At the end of the 27-year lease, the landowner could terminate all or part of the lease in view of disposing of the property.

The Flemish Farming Lease Decree applies in its entirety to farming leases of at least 27 years.

Here a notice period of at least 3 and at most 4 years applies.

6. Career lease

Notwithstanding the general rule that the lease period is at least 9 years (with extensions of 9 years each time), a career lease can be entered into for a fixed term equal to the difference between the time when the tenant will have reached the legal retirement age and the current age of the prospective tenant. The tenant must not be older than 40 years at the time the agreement is entered into. If there is more than one tenant, only the age of the youngest co-tenant will be taken into account.

While maintaining the application of the rules of expropriation, the career lease cannot be terminated by the leaseholder. At the end of a career lease, the landowner can freely dispose of his property by operation of law without the tenant being able to object.

The sublease and lease transfer cannot exceed the agreed lease period.

If the tenant is left in possession of the property after the end of the career lease, the career lease shall be tacitly renewed from year to year.

7. What if the leased property is sold?

The landowner is allowed to terminate all or part of the lease to dispose of it, provided the following conditions are met:

1. the lease relates to land;
2. the termination is given by the end of the current lease period;
3. the termination is not given during the first lease period, unless the first lease period has a duration of at least eighteen years;
4. the termination option is expressly provided for in the farming lease agreement.

Here, a notice period of at least 2 years and a maximum of 4 years applies.

8. Termination for personal use 

The landowner may terminate all or part of the lease in order to exploit the property personally, or to transfer the exploitation to one or more privileged family members, or to transfer the land to a viable farm if the following conditions are cumulatively met:

1. the tenant has reached the legal retirement age;
2. the tenant receives a retirement or survivor's pension;
3. the tenant cannot appoint one or more relatives with preferential rights to continue his activities.

If the property is leased by several tenants, all co-tenants must fulfill the above conditions.

If a farm is leased or sold, the lease or sale must be completed within six months of the tenant leaving the leased property.

A notice period of at least 1 year and not more than 4 years shall apply.

9. Summary 

Under the Flemish Farming Lease Decree, the landowner can terminate the lease for the following reasons with the following notice periods provided the conditions are met:

Should you like more information on this subject, please do not hesitate to contact our specialists: +32 (0)2 747 40 07 or info@seeds.law.