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

judge will have to appreciate the circumstances to decide if there is tacit renunciation or not.
The elements to be considered are those such as, the time which has elapsed since the delivery
of the property, the relationships between the parties and so on 217 .
The sanctions imposed for a failure to respect this obligation may be: a forced
execution of the work or a termination of the contract. The tenant must choose between both
of these possibilities. If the tenant chooses to allow for the carrying out of repair work 218 , the
landlord will be liable for all expenses. If required, the expenses may be deducted from the
rent 219 .
If the landlord cannot finance the work, he may conclude a restoration contract with the
tenant. The tenant commits himself to perform the work. In compensation, the landlord
temporarily renounces his right to terminate the contract, to ask for application of an indexclause,
to review the rent or to demand the payment of rent 220 .
Should the tenant prefer to terminate the contract he will receive damages 221 .
b) Protection from defects
One of the legal obligations imposed upon the landlord consists in providing property
that is free from defects 222 . The defect must render the housing unfit for its purpose 223 . The
most frequent examples are the dampness of walls, excessive noise entering the housing 224 ,
permanent disgusting odours, for example; less serious but inconvenient problems may not
give rise to a claim for damages. Although article 1721 is silent on this point, defects that the
tenant could have noted prior to agreeing the contract will not give rise to a claim for breach.
The judge appreciates the fact that the defect was apparent in the circumstances 225 .
In the case of mildew stains it would seem most likely that this will not constitute
sufficient grounds to breach health and safety standards. Such a defect is similarly apparent
and as such the judge will have to decide whether this is a case that would require the landlord
to repair the defect. Importantly, the parties may decide that this type of defect can instead be
repaired by the tenant. Moreover, such defects may in reality be caused by negligence on the
part of the tenant, in which case T will be held liable.
b) a noisy building site for a big road is opened by the city administration next to the
apartment.
The landlord owes the tenant a guarantee for legal difficulties (trouble de droit) caused
by third parties 226 . Concerning the relationships between the parties, the public authority must
be equated to a third party 227 . As such, the landlord will not be held responsible for the
troubles caused by administrative authorities, unless the trouble is due to a legal or contractual
217
218
Y. MERCHIERS, o.c., p. 79.
This is an application of article 1144 of the civil code.
219
220
221
222
223
224
225
226
227
P. DESMEDT, "De staat van de huurwoning en de renovatiehuurovereenkomst na de wet van 13 april 1997", in Het gewijzigde
woninghuurrecht, Diegem, Kluwer rechtswetenschappen, 1997, p. 48.
Article 8, of the 1991 Statute on Tenancy.
Y. MERCHIERS, o.c., p. 82.
Article 1721 of the civil code.
P. COECKELBERGHS, "Obligations et droits du bailleur", in Le louage de choses, o.c., p. 472.
Ibidem, p. 474.
Ibidem.
Articles 1725 - 1727 of the Civil Code.
Y. MERCHIERS, Le bail en général, o.c., p. 186.
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