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

takes possession of the apartment. The two contracts are only discovered when T2 wants
to take possession of the apartment as well. What are the legal consequences for both
contracts and the rights of the parties?
This scenario involves a controversy as to which tenant has a superior right to the
property - the tenant whose contract has a prior claim or the tenant who first took possession
of the premises? Legal doctrine and the courts generally afford preference to the tenant who
took first possession of the premise 202 .
One of the obligations of the landlord is to guarantee the tenant enjoys the property
unmolested. This is a scenario where this guarantee has not been respected, so the contractual
liability of the landlord is involved 203 .
Question 25: Delayed Completion
L is an investor and buys an apartment from a big building company. According to the
contract, the apartment should be ready from 1/1/2003. However, the purchase contract
contains a (lawful) clause according to which the builder is not responsible for delay
unless caused by him. L rents the apartment to T from 17/1/2003 without any special
arrangements in the case of delay. However, as the neighbour N challenges, though
unsuccessfully in the end, the building permit granted by the competent authority to B in
an administrative law procedure, the apartment is not available until 1/1/2004. Has T
any claims against L? Has L claims against N?
If L fails to deliver the keys to the premises in time, T must decide whether or not to
make a claim for breach of contract and damages 204 . Such delays are usually caused by
confusion regarding the moment of delivery or are due to a previous tenant's failure to return
the keys/property. In the case of a trial, the judge may decide that in bringing the case T has
been overly excessive. L may have a claim against N if it appears that N was at fault in
bringing the claim (on the basis of article 1382 of the Civil code) or abused L's right to protest
against such a permit. Nevertheless, such cases are rare.
Question 26: State and Characteristics of the House (Guarantees)
L rents an apartment to T. T wants to diminish the rent because
a) stains of mildew have been found in some corners.
Variant 1: By letter, T asks L to renovate the walls affected by mildew within 2 weeks. As
T does not reply, T has the repair done by a specialist and wants to off-set the costs from
the monthly rent rates. Is this lawful?
Variant 2: T did not discover the mildew stains when inspecting the house before
entering into the contact, even though these had already been present. Does this
preclude her from claiming a rent reduction?
b) a noisy building site for a big road is opened by the city administration next to the
apartment.
c) the tenants of the neighbouring apartment in the house have repeatedly and despite
T’s complaints organised loud nightly parties from 11 p.m. to 5 am.
202 B. LOUVEAUX, Le droit du bail - Régime général, Bruxelles, De Boeck, 1993, p. 68.
203 Y. MERCHIERS, Le bail en général, Rép. Not., p. 183.
204 B. LOUVEAUX, Le droit du bail - Régime général, Bruxelles, De Boeck, 1993, p.94.
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