Expat Q&A: New preferential right for tenants regarding property sales in Brussels

On 19 September 2023, the Parliament of the Brussels-Capital Region passed a new ordinance on the preferential right for tenants of rented property. This new measure entered into force in January 2024. What is the preferential right? How does it work in practice? What measures apply if the landlord breaches this provision? The Expat Welcome Desk provides all the information you need!

What measure is currently in force?

As stipulated in Article 242 of the Brussels Housing Code, tenants must be informed of the landlord's intention to sell his or her property by registered letter or bailiff's writ, before any public announcement of the sale. This measure applies only to private sales.

This right to information consequently does not confer any preferential right on the tenant of the rented property if the property is put up for sale. The tenant may, of course, express his or her intention to buy the property, but will have the same rights as other potential buyers.

Preferential right

What is it?

The preferential right is a right that enables the tenant to buy the rented property before anyone else under the conditions set by the landlord who is selling the property. The idea is to enable tenants to become homeowners while ensuring a degree of stability for them.

Scope of the Ordinance

Application of the standard
This measure is to enter into force in Brussels on 1 January 2024. It will therefore apply to all sales procedures after this date. Tenants living in the Flemish and Walloon Regions are not affected by this new measure.

Who is the tenant concerned?

Tenants living in the Flemish and Walloon Regions are not affected by this new measure. The tenant (signatory of the lease) must reside officially in the property put up for sale in order to be entitled to the preferential right. The tenant's legal or de facto cohabitant and their children (if they also reside officially in the property) are also entitled to this preferential right.

For what type of lease?

The measure applies to residential leases of principal residences for a term of nine years or more.

By extension, it also applies to:

• A one-year lease that turns into a nine-year lease (because the tenant continues to occupy the property without opposition from the landlord);
• A three-year lease extended by mutual agreement by and between the parties.

What types of sale are excluded?

Several types of sale are excluded by the Ordinance, including sale to a partner or a member of the seller’s family up to the third degree, sale to a public authority, sale as a life annuity, etc.

The full list is available in the Ordinance.

How does that work in practice?

The landlord must inform the tenant of his intention to sell the rented property and of the latter's preferential right by registered letter with acknowledgement of receipt. The letter must therefore contain all the information relating to the sale: address of the property, floor space, cadastral designation, price and conditions of sale.

This notification is equivalent to an offer to sell the property to the tenant. The conditions of sale and the price are non-negotiable.

A period of 30 days will start to run as of receipt of said notification. During this period, the tenant may accept the landlord's offer and buy the property. If the 30-day period expires or the tenant does not accept the landlord's offer, the landlord may list the property publicly for sale. Note that the 30-day period is a maximum, and that the tenant has ample time to respond before it ends. If the tenant has not written to the landlord by the end of the 30-day period at the latest, this lack of response will be considered as a waiver of the preferential right. 

If the property is subsequently offered to another buyer at a more favourable price or on better terms, the tenant will then have an additional seven days to exercise his or her preferential right (which in reality becomes the tenant's right of pre-emption).

The notary and the estate agent must ensure that the tenant has been properly informed of his or her preferential right by the owner of the property. If not, this task will fall to them. 

What is the penalty for non-compliance with the Ordinance?

If not, this task will fall to them. If the owner does not respect the tenant's preferential right (or right of pre-emption), the tenant has the right to request that the sale be cancelled (nullity of the sale to a third party). The tenant will then take the place of the buyer by paying the same price (plus the administrative costs) by taking legal action in subrogation against the buyer of the property. The aggrieved buyer of the property may in turn take legal action against the landlord, the estate agent or the notary.

For more information:

• BILL FOR AN ORDINANCE AMENDING THE BRUSSELS HOUSING CODE TO INTRODUCE A PREFERENTIAL RIGHT FOR TENANTS OF A PROPERTY PUT UP FOR SALE
• HTTPS://WWW.NOTAIRE.BE/NOUVEAUTES/DETAIL/NOUVEAUTE-IMMOBILIERE-A-BRUXELLES-LE-DROIT-DE-PREFERENCE-DU-LOCATAIRE

The Expat Welcome Desk is a free service that advises internationals on the practicalities of daily life in the Belgian capital, from accommodation and residence permits to employment rights and taxation, among a number of topics.