- 1 of 47 - BELGIUM Catherine DELFORGE and Ludivine ...

In 1993, the Belgian Parliament revised the Constitution so as to insert the right to enjoy
suitable housing in the section devoted to the fundamental rights and freedoms of Belgian
citizens 9 . In this report we will assess the implementation of this right in practice.
B) Basic structure and content of current national law:
1. Private Tenancy Law
Belgium is a federal state; as a consequence tenancy law is divided into two parts:
federal law and regional regulations. In accordance with a special statute adopted in 1980,
regions are competent in ensuring healthy housing policy 10 . In exercising their competence,
the Flemish Community and the Walloon Region have taken measures to ensure minimum
standards for rented commercial premises 11 .
The difference between federal and regional law consists in the obligatory force of
regulations. Whilst the majority of federal tenancy rules are imperative 12 (i.e. they protect
particular interests and as such the judge cannot sanction their violation automatically),
regional decrees are matters of ordre public and a violation may be upheld by the judge as a
matter of course 13 .
Tenancy contracts do not confer any real property rights: the tenant receives only an
obligatory right via his contract 14 . According to article 1709 of the Civil Code, hiring ("le
louage" in French) is a contract by which one party commits himself to providing one thing to
another party for a certain period of time and for a certain price, with the other party
committing himself to pay. This rule leaves no room for any property right to emerge in
Belgian tenancy law.
On the other hand, there are some other forms of "lawful possession" which provide
property rights to the possessor, but they are quite different from what we call "tenancy". One
of them is the right of housing (habitation in French): it confers a right to lawfully possess a
house. Nevertheless, this right is limited to holder's and their family's needs 15 . Another kind of
lawful possession is that which confers merely an obligatory right. This is the lending for use
("prêt à usage" also called "commodat"). This contract is defined by articles 1875 and 1876 of
the Belgian Civil Code as a contract by which one party gives a thing to another who uses it
and returns it after use. 16
9 Article 23 of the Belgian Constitution, under the section devoted to "Belgian citizens and their fundamental rights".
10 Articles 1, §3 and 6, §1 of the special statute of August 8 1980.
11 See for example the Walloon Decree dated April 6 1995 (Mon.b. 4.07.1995).
12 This is not the case for articles 1719 and 1720 of the Civil Code for example.
13 Y. MERCHIERS, "Les baux. Le bail en général", Rép. Not., Bruxelles, Larcier, 1997, p. 359.
14 N. VERHEYDEN-JEANMART and C. MOSTIN, "Jouissance d'immeuble: bail et conventions voisines", in Aspects récents du droit des
contrats, Ed. du Jeune Barreau de Bruxelles, 2001, pp. 93 and f.
15 Ibidem.
16 N. VERHEYDEN-JEANMART, "La protection assurée au commodant par l'article 1889 du Code civil. Règle impérative ou
supplétive?", in Mélanges Michel HANOTIAU, Bruxelles, Bruylant, 2000, pp. 415-422.
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