Is sublease and assignment of farming lease possible? If so, under what conditions?

1. Sublease and assignment of lease

The provisions of the Farming Lease Law regarding the sublease and assignment of lease to other persons than privileged family members, are partially taken over by the Farming Lease Decree, but with legislative and linguistic adjustments, and are supplemented.

It is a frustration for many lessors that more than often they lack visibility on who is the actual user of their land, given that the the assignment of lease and sublease are frequently utilized. To somehow limit the use of sublease and assignment of lease the Farming Lease Law already stipulated that the consent of the lessor must be obtained for such actions.

The Farming Lease Decree now stipulates that the request for consent, under penalty of nullity, must include the following data:

1. The identity of all parties involved, namely:

a) For natural persons; the first name and surname, the residence, the date and place of birth, the martial status, the identification number in the National Registr or in the BIS-registr of the Crossroad Bank for Social Security, and, if known, the producer number and the company registration number. In the absence of an identification number in the National Register or in the BIS register of the Crossroad Bank for Social Security, the date and place of birth must be provided.

2° the date on which the assignment of lease or sublease commences and, where applicable, its duration;

3° the cadastral designation of the parcels, as recorded in the extract from the cadastral register, including at least the municipality where the parcels are located, the division, the section, the parcel number, the area, and the street or field name;

4° a statement that, in the absence of a response to the request for consent within three months of receipt, such silence will be deemed as consent.

The Farming Lease Decree also establishes an online portal where owners can verify who has reported their property in the collective application, the annual parcel declaration to the Department of Agriculture and Fisheries.

2. Preferential sublease

The rules regarding privileged sublease will also be incorporated into the Farming Lease Decree, with a minor adjustment.

A preferential sublease occurs when the lessee transfers the leased property to his spouse, children, or stepchildren without needing the consent of the lessor. The lessee must inform the lessor of this transfer within three months of the takeover, including the identity of the transferee. As a consequence, a new lease term of nine years will commence from the anniversary of the takeover. The lessor may lodge opposition before the Justice of Peace based on limitative and grave reasons.

The provision no longer lists the privileged family members but instead refers to the term “privileged family members” as defined in the Farming Lease Decree.

The sublease and assignment of lease can not exceed the lease term as agreed on. De term of the sublease ends on the same moment as the farming lease itself, even if the remaining term lasts less than nine years. With the preferential sublease however, a new term of nine years commences from the anniversary of the takeover.

If you would like more information on this subject, please do not hesitate to contact our specialists at info@be.Andersen.com or +32 (0)2 747 40 07.