- Commercial and Economic Law , Real Estate, Renting and Co-ownership
- Pieter Dierckx - Alain De Jonge
- pop-up store , pop-up restaurant , pop-up house , shop , espress agreement , short-term lease , retail store
In the last few years, the so-called pop-up businesses have steadily made their entrance. This
situation will soon get a legal framework in Flanders.
The new decree regarding short-term lease for business and commerce, already called the
"Pop-up decree", has been approved by the Flemish Parliament on 8 June 2016.
First and foremost the pop-up concept allows entrepreneurs to investigate the viability of a
given initiative before commencing a long-term investment.
Furthermore, it constitutes a good opportunity to open a store, connected to a temporary event or for implementing a publicity stunt.
Pop-ups can also offer a solution to owners of vacant commercial premises which prove to be difficult to lease, since their premises serve, for a limited period of time, a concrete purpose.
The initiators of pop-ups often encounter some reluctance from the owners of the commercial
premises up for lease. Due to the lack of a clear-cut legal framework, the aforementioned owners
fear a requalification of the temporary lease agreement to a commercial lease agreement, which
needs to be in compliance with the mandatory provisions of the law on commercial lease of 30 April
1951, like, among others, the mandatory duration of 9 years.
These circumstances caused a whole lot of barriers and lamentations, both for entrepreneurs and landlords.
The legislator has tried to remedy these issues.
The decree regarding short-term lease for business and commerce introduces a new lease regime for pop-ups in Flanders.
Article 2 of the decree stipulates that a lease agreement is covered by the decree, in case of:
(i) lease of immovable goods or parts thereof that, pursuant to an express agreement of the parties during the term of the agreement,
(ii) is used by the tenant mainly for exploiting a retail store or an enterprise of a craftsman,
(iii) whereby there is direct contact between the tenant and the public and
(iv) which is expressly concluded for a term equal to or shorter than one year.
The maximum term of one year is therefore essential as it will act as a cut-off value.
Other characteristics of the new regime are:
Besides, the decree contains some procedural rules and it specifies that taxes on the leased
estate (like property tax) are included in the rent to be paid, unless otherwise stipulated.
The decree enters into force on the first day of the second month after publication thereof in the Belgian Gazette.