The Flemish Rents Decree

Leasing law in Flanders underwent a fundamental transformation with the entry into force of the Flemish Rent Decree on Nov. 1, 2023. This thorough reform, which is the first since 1988 , replaces the old federal Tenancy Act of 1969 and introduces important innovations that directly affect both leaseholders and lessors. In this comprehensive guide, our attorneys discuss all aspects of the new leasehold law so that you are fully informed of your rights and obligations.

1. General introduction: the modernization of leasehold law

1.1 From federal to Flemish leasehold law

The regionalization of tenancy law stems from the sixth state reform of 2014, which made special tenancy law a regional competence. In doing so, the Flemish Region followed the example of the Walloon Region, which, as early as 2019, will have a own lease decree introduced. The Brussels Capital Region is currently working on its own lease regulations, which means that the federal Leasehold Act will soon apply only there.

The Flemish Tenancy Decree deliberately retains the general framework of the federal Tenancy Act, ensuring continuity and legal certainty. The familiar structure will be retained, but modernized and supplemented with new elements that respond to current social developments and real-world bottlenecks.

1.2 The five strands of reform

The Flemish decree maker has made five clear policy choices in this reform:

First line of force: modernizing the scope The conceptual framework is updated with definitions that reflect contemporary agricultural practice. New exceptions such as the nature contract and the multi-year cultural contract respond to current needs.
Second line of force: strengthening writing After decades of oral leases with all the ambiguities that entails , the decree pushes for transparency by encouraging written agreements and even making them enforceable through the courts.
Third line of force: New balance between parties With new termination options such as the notice for alienation and special lease forms for small owners , a better balance is sought between the protection of the tenant and the interests of the lessor.
Fourth thrust: Integration of ecological objectives. The right to lease is used as an instrument for Flemish nature policy by offering new opportunities for afforestation and nature realization , while monitoring the viability of farms through a "viability test."
Fifth line of force: general modernization From the introduction of secure shipments to procedures for online sales : the decree brings leasehold regulations in line with the 21st century.

1.3 Preservation of fundamental principles

Despite all the innovations, the core principles of leasehold law remain intact, providing much-needed stability:

Tenant's freedom of cultivation remains untouchable: The lessee decides freely on the method of construction and the products of his farm.
The consensual nature of the lease is preserved: A lease still comes about by mere agreement of will and can therefore be oral.
Automatic renewal of leasehold periods remains the rule: Without valid notice, a nine-year lease is automatically renewed for another nine-year period, making leasehold a "contract without end."
The lessee's right of pre-emption retains its force: This fundamental right is affirmed and modernized.
Full subrogation on sale continues to apply: The buyer of a leased property enters fully into the rights and obligations of the original lessor.

2. The scope of the Flemish Tenancy Decree.

2.1 When does a leasehold exist?

The lease decree applies to the lease of real estate used primarily in the tenant's agricultural business. This requires the merging of several elements:

It must be a rental agreement: There must be an agreement by which the use of immovable property is granted against payment. Without a consideration, which since the new decree can only consist of money , there is no lease.
Main use in a farm: The goods must be used primarily for agricultural purposes. Secondary use for other purposes is possible, but the agricultural use must predominate.
Definition of farm: The decree defines an agricultural enterprise as "the commercial operation of immovable property for the purpose of producing agricultural products primarily for sale." This includes two essential components:
- Business operation: There must be an economic activity with a profit motive.
- Production for sale: Purely hobby farming for personal consumption is therefore not included.

2.2 Extension of scope

The decree extends the scope to certain rights in rem that are sometimes used in practice to circumvent mandatory leasehold regulations:

Usufruct among living persons: When usufruct is established for a fixed term to make agricultural land available, it falls under the Leasing Decree. The normal Civil Code rules on usufruct are then not applicable.
Leasehold of less than 27 years: With the lowering of the minimum leasehold term to 15 years in the new property law, the decree-makers feared that leaseholds would be used as an alternative to tenancy. Therefore, ground leases of less than 27 years for agricultural use are now also covered by the Leasing Decree.

2.3 The exceptions to the scope

The decree exhaustively lists which agreements are not covered by the lease regulations, even if they meet the basic definition:

The classical cultural contract: These are seasonal agreements of less than one year In which a farmer leaves the use of his land to a fellow farmer for a fee after preparatory works. The lessor must himself be an agricultural operator and perform the tillage.
The new multi-year cultural contract: For perennial crops such as strawberries or roses, a cultivation contract is now up to maximum 3 years possible. The crop must appear on a list established by the Flemish Government and the contract may not be preceded by an identical contract.
The nature contract: This important new exception allows for flexible leasing of land in green destinations (forest or natural areas) without application of the mandatory lease rules. Conditions are:
- The lands are entirely in defined green areas.
- A type 3 or 4 wildlife management plan is applicable.
- The exclusion of the Leasehold Decree shall be expressly stated in the agreement.
- The land has not already been leased at the time of closing.
Other exceptions:
- Industrial fattening and breeding farms separate from a farm.
- Agreements where the owner contributes at least half of equipment and livestock and shares in the losses.
- Use by staff as part of an employment contract.
- Contribution to a recognized agricultural company (partnership) established for at least 27 years.
- Sale of fruit proceeds from standard orchards.

2.4 General anti-abuse provision

The decree contains a new general anti-abuse provision. Constructions designed purely to circumvent the Leasing Decree (e.g., "osmosis sales" in which the price of leased plots is artificially inflated) are not opposable to the protected party.

3. The lease agreement: form, evidence and content.

3.1 The new importance of writing

One of the most notable innovations is the strong emphasis on written leases. Whereas oral leases used to be the rule, the decree maker now wants to create transparency and legal certainty by making the writing central.

3.2 Mandatory content of a written lease agreement

A proper written lease agreement, to avoid discussions, must contain a number of essential elements:

Identification of parties: Detailed identification information is required both for natural persons (name, residence, state registration number) and legal entities (name, registered office, company number).
Temporal elements: The start date and duration of the lease or first lease period should be clearly stated.
Description of the leased property: A complete cadastral designation of all plots (municipality, division, section, plot number) is necessary, as well as the non-indexed cadastral income and agricultural area.
Financial aspects: The agreed lease price (within the legal maximums), the method of payment and possibly the account number should be included.

3.3 Making the writing enforceable

One revolutionary new feature is the ability to force the other party to produce a writing. The procedure is as follows:

Step 1: Notice of default: The party seeking a writ shall send a notice of default by secure transmission.
Step 2: Response time: The other party has 30 days to voluntarily cooperate.
Step 3: Judicial proceedings: In case of persistent refusal, the requesting party can go to the justice of the peace.
Step 4: Sanctions: The court can impose severe sanctions that must be explicitly stated in the notice of default:
- Refusing lessor: may be sanctioned with a lease renewal, which means that a new first lease period of 9 years starts.
- Refusing tenant: can the termination of the lease risk.

3.4 Proof of lease agreement.

The decree retains the protective evidence regime from the old Tenancy Act:

For the operator (lessee): In the absence of writing, the operator may prove the existence and terms of the lease by any means, including witnesses and presumptions.
For the lessor: In principle, the lessor can only provide proof with a writing, except to provide contrary proof of the tenant's allegations.
The offer of payment: The lessee may also prove the existence of a lease by a personal offer of payment followed by a letter of confirmation within 15 days. If the lessor does not respond with a summons in reconciliation within six months, the payment is considered conclusive proof of tenancy.

3.5 The place description

The decree makes a place description required to any written lease agreement. This one should:

Opposite be made up at joint expense.
Be circumspect and detailed and accurately describe the state at the outset.
To be attached to the lease agreement.

Similarly, when a lease is transferred to family members, a new site plan must be drawn up between the transferor, transferee and lessor. Without a place description, the tenant is presumed to have received the property in the condition in which he leaves it, which is often to his detriment.

4. The lease term and special forms of lease

4.1 The basic principle: minimum 9 years with automatic renewal

The minimum lease term is 9 years. This is a provision of mandatory law, which means that parties cannot agree on a shorter term; a shorter term is automatically extended by law to 9 years. After the expiration of each lease period, the lease will be renewed by operation of law for a new period of 9 years, unless one of the parties has validly terminated the agreement. This system of tacit and automatic renewal makes tenancy a very stable contract that provides farmers with the business security necessary for long-term investments and sustainable operations. It is the cornerstone of the protection afforded by leasehold law.

4.2 Classic special leaseholds

In addition to the standard 9-year lease, the decree also recognizes special lease forms that offer more flexibility, often in exchange for more security for the lessor.

The lease of at least 27 years Parties can enter into a lease for a long, fixed term of at least 27 years. This offers some advantages to the lessor, such as the possibility to ask for a higher rent (+50% for land, +25% for buildings). In return, the termination options are severely limited: in principle, the lessor can only terminate at the end of 27 years for his own exploitation or disposal. An interim termination, unlike before, is no longer possible, except in the specific case of expropriation by a public administration.
The career lease This is a lease that runs until the tenant reaches the legal retirement age. This formula is only available to tenants who are under 40 years of age at the time the contract is concluded. It is a fixed-term contract with no possibility of renewal. The lessor cannot terminate mid-term, but has the absolute certainty that he can freely dispose of his property at the end of the term.

4.3 New special leases

The Leasing Decree introduces two important new forms of contract that address specific needs of owners.

The lease with notice for alienation This important novelty allows a lessor to terminate the lease for the purpose of selling or otherwise disposing of the land. The conditions are strict:
- The possibility should explicitly in the lease agreement are included.
- It can only be for soils, not for buildings.
- The notice can only be given from the second lease term, unless the first lease term had a duration of at least 18 years.
- The notice period is 2 to 4 years and the sale must be realized before the end of the current lease period.
The one-time fixed rent for small owners This option is specifically for owners (natural persons, not legal entities) who are a maximum of 1.5 hectares of cultivated land own. They can take out a one-time lease for a fixed term (minimum 9 years) that will is not automatically renewed. The agreement must be mandatory in writing and can only be made for lands that were not leased at that time.

4.4 Overview of lease periods and termination options

The leaseholder's termination options vary widely depending on the lease term:

First lease period (year 1-9): Termination options are very limited. In principle, terminations can only be made for specific reasons that justify rapid termination, such as when it comes to construction or industrial land, for purposes of public interest (by public authorities), or for the new ground for termination afforestation/nature realization in green areas.
Second lease term (years 10-18): The possibilities are the same as in the first period. The tenant thus enjoys a very high degree of stability for at least 18 years.
From third lease term (year 19+): In addition to the previous possibilities, important grounds for termination are added. From then on, the lessor can terminate for personal exploitation by himself or a favored family member. Also, the new notice for alienation may take effect from this period, if contractually provided for.

5. Termination of leasehold

5.1 General principles

Termination is a formal legal act subject to strict rules. A termination is only possible on the grounds exhaustively listed in the decree. Every notice must:

Done in writing by secure shipment.
The precise reason state for the termination.
The full identity of future operators, if applicable.
Subject to the agreement of the lessee, by the justice of the peace declared valid become. The lessor must take the case to court within three months of the termination.

5.2 Short-term grounds for termination (3 months)

In certain cases, the lease can be terminated at any time with a short notice period of 3 months. The most important are:

Construction and industrial land: For land intended for construction or industry. If this destination was already known when the lease was concluded, it must be mentioned in the contract. An environmental permit is required for the validation of the notice.
Family purposes: The lessor can give notice for strictly private use (e.g., garden) of a piece of up to 20 ares adjacent to his own property.
Afforestation and nature realization: This new termination motive allows for rapid termination for ecological projects, but under strict conditions: it must be a contiguous area of at least 0.5 hectares held for at least 24 years, and it must not serve to compensate for a tree lot felled elsewhere. Crucial here is the viability test (see 5.4).

5.3 Grounds for termination by end of lease term (notice period 2-4 years)

Most terminations can only be given toward the end of a current lease term.

Own exploitation: This is the most common ground for termination. The lessor can terminate in order to exploit the property himself or transfer the exploitation to a privileged family member. This can only be done from the third lease term. The future operator must personally and actually operate the property for at least 9 years and meet certain age and ability requirements.
Other serious reasons: The decree lists other reasons, such as the aggregation of plots with another tenant for economic reasons, depreciation of the property due to the tenant's fault, or the termination of a retired tenant who cannot appoint a successor.

5.4 The livability test in afforestation/nature realization

In a notice for ecological goals (afforestation/nature), the court is required to consider whether the livability of the tenant's farm is not seriously disrupted. The decree provides nine objective criteria that lead to an irrebuttable presumption of serious disruption:

House plot criterion: The notice concerns land immediately adjacent to the tenant's farm buildings or residence.
Area criterion: The notice covers more than 20% of the total business area.
Self-Realization: The tenant realizes the ecological objective itself.
Management measures: The lessee already applies recognized nature-friendly measures.
Youth Criterion: The tenant (or managing partner) is under 40 years of age.
Succession criterion: The lessee may appoint a successor who is under 40 years of age.
Quality grounds: It is about good, productive agricultural land and not "less suitable" land.
Economic criterion: The company's gross operating income is too low (<€40,000 per manager) or would decrease by more than 10% due to the cancellation.
Organic farming: The farm is an organic farm or is in conversion.

In "green areas" (nature and forest areas), a limited test applies and the tenant can only rely on the first three criteria. Outside these areas, the full list applies.

5.5 Procedure of termination

Step 1: Letter of notice: A proper termination letter will be sent by secure mail with all required entries (reason, identity, etc.).
Step 2: Tenant response: The lessee has 30 days to agree in writing or not.
Step 3: Judicial proceedings: In the absence of consent, the lessor must request validation from the Justice of the Peace within 3 months.
Step 4: Research judge: The judge examines the seriousness and validity of the reasons and, if necessary, applies the livability test.
Step 5: Implementation: The termination reason must be effectively and permanently realized after the departure of the tenant.

6. Tenant's right of pre-emption

6.1 Principle and scope

When selling the leased property, the lessee has a legal right of pre-emption. This fundamental right includes:

The right to purchase the property at exact same price and conditions as the prospective buyer.
An absolute priority on all other prospective buyers.
The ability to exercise the right for himself or for his privileged family members.
The ability to transfer the right to third parties, although this is now limited by the figure of the "safe buyer."

6.2 Procedure for selling out of hand

Notification by notary: The notary provides the lessee with a draft of the sale agreement. This contains all the conditions, only the identity of the buyer remains open. This notification counts as a formal offer.
Response deadline: The lessee has 30 days to decide whether to accept the offer.
Upon acceptance: The sale is completed as soon as the lessee notifies the notary of his acceptance. He then has 60 days to pay the purchase price.
In case of refusal: The owner may sell the property to the third party, but not at a lower price or more favorable terms without consulting the tenant again. After one year, a new offer is required anyway.

6.3 Public sale procedure

Physical public sale: The notary must give the lessee at least 15 days' notice. On the sitting day, after the last bid, the notary asks the lessee if he exercises his pre-emption right at that price. The lessee can answer immediately or ask for 10 days of consideration.
Online sales (Biddit): The decree now provides a clear procedure. The allocation is made under the suspensive condition of non-exercise of the pre-emption right. The notary sends the lessee an extract of the allotment, after which the lessee has 10 days to decide.

6.4 New figure: the safe buyer

If a prospective buyer commits in the deed of sale to the tenant still lease for at least 18 years, he becomes a "safe buyer." This has an important consequence: the lessee can then exercise his pre-emption right no longer transfer to a third party (e.g., an investor). However, he can still exercise the right himself. In exchange for this loss of strategic options, the lessee gets a very long lease.

6.5 Exceptions to the right of pre-emption

In certain cases, pre-emption does not apply, such as:

Sale to a relative of the owner.
Sale between co-owners.
Purchase by a government for public interest purposes (under strict conditions).
When the lessee does not personally operate the property.
When the tenant himself has terminated the lease.
When the tenant is retired and cannot appoint a successor.
When purchased by a public lessee for afforestation or nature realization, provided that the viability of the lessee's farm is not seriously disturbed.

6.6 Consequences of violation of pre-emption rights

If his right is denied, the tenant can choose:

Substitution: The lessee demands to become buyer himself on the same terms.
Having a third party substitute: What is new is that the lessee can also demand that a third party designated by him be substituted for the purchaser.
Damages: The lessee can claim damages of 20% of the sale price from the seller.

The statute of limitations for these claims is short (usually 3 months from notice). An important exception is the claim in case of non-realization of afforestation or nature purposes by a public landlord; it does not expire until 25 years have passed.

7. Lease price and financial aspects.

7.1 The system of maximum prices

The rental price in Flanders is limited by law. The maximum permitted rental price is calculated using the formula: Rent = Non-indexed Cadastral Income × Coefficient. These coefficients become:

Established by province and agricultural region.
Committed for a period of 3 years.
Determined by the lease price committee.

7.2 Composition of lease price committee

This committee is composed of representatives of the interest groups:

3 representatives of landowners (2 from Rural Flanders, 1 from the Federation of Notaries).
3 tenant representatives (2 from Farmers' Union, 1 from the General Farmers' Syndicate).
A chairman and vice chairman from the Flemish government (Agency for Agriculture and Marine Fisheries).

Decisions are made by consensus.

7.3 Criteria for coefficients.

The committee considers two important factors in setting the coefficients:

Profitability of farms: The evolution of average profitability by agricultural region is the decisive factor.
Land prices: What is new is that unrealized capital gains or losses are also taken into account by the evolution of land prices. A sharp increase in land prices can thus have a dampening effect on the rental price, and vice versa.

7.4 Long-term increases

For leases recorded in an authentic deed for a long initial lease term, higher lease rates are allowed:

18 years: +36% for lands, +18% for buildings.
21 years: +42% for lands, +21% for buildings.
24 years: +48% for soils, +24% for buildings.
25+ years and career leases: +50% for land, +25% for buildings.

At the end of this long initial period, the lease price drops back to the normal, non-raised maximum.

7.5 Revision of rental price

Any party may request a revision of the lease price at any time if the applicable lease price differs from the current maximum allowable lease price (e.g., after an adjustment of coefficients). If a tenant has overpaid, he can claim repayment of the overpayments for the last five years.

7.6 Payment modalities

The payment of the lease price may in money only happen; payment in kind has been abolished.
All common means of payment (wire transfer, etc.) are allowed and will count as proof.
The lessor is required to issue a discharge notice.

7.7 Flemish Pachtobservatory

A new consultative body, the Flemish Pachtobservatory. This body, composed of representatives of owners, tenants and the government, is tasked with monitoring the evolution of lease and land prices and evaluating the application of the lease legislation.

8. Rights and obligations during the lease

8.1 Rights of the lessee

Cultivation Freedom: The lessee has absolute freedom in the conduct of his business, including the choice of crops, cultivation methods and the sale of his products. Clauses limiting this freedom are null and void.
Construction Law: The tenant has the right, without the permission of the lessor, to erect all buildings and carry out works useful for his exploitation and consistent with the destination of the property. However, he must maintain them himself and apply for the necessary permits.
Right to compensation: At the end of the lease, the tenant is entitled to compensation for the added value created by buildings and works, land improvements, plantings, and for abandoned straw, manure and supplies.
Protection of property: The tenant enjoys strong protection through the automatic renewal of the lease, the limited grounds for termination, the right of pre-emption and the possibility of transferring the lease to family.

8.2 Obligations of the lessee

Acting like a good family man: The tenant must maintain the property normally, respect its purpose and not cause any depreciation.
Payment of rent: The tenant must pay the rent in a timely and proper manner.
Upholstery of the company: The tenant must provide the farm with sufficient animals and equipment for normal operation.
New information requirement: At the request of the lessor, the lessee must communicate within two months who exploits the leasehold property at that time (e.g., in case of sublease or exchange of use).

8.3 Lessor's rights.

Receipt of rent: The lessor is entitled to the timely payment of the correct, indexed rent.
Control Law: The lessor may verify that the lessee is fulfilling his obligations and using the property correctly.
Notice: The lessor may terminate the lease according to the grounds and procedures strictly provided by law.

8.4 Obligations of the lessor

Indemnity for quiet enjoyment: The lessor must ensure that the lessee can operate the property quietly and must not disturb him in doing so.
Performing major repairs: The lessor is responsible for major structural repairs to the buildings unless otherwise agreed.
Procedural duties: The lessor must properly comply with all legal procedures, such as when giving notice and offering the right of pre-emption, and cooperate in the preparation of a writing.

9. Sublease and lease transfer

The decree regulates a tenant's ability to pass on the use of leased property to a third party. The basic rule is restrictive, but there are important exceptions for family members.

9.1 Basic principles

The premise is that both sublease (the lessee himself is reletting to a third party) as lease transfer (the tenant transfers his entire lease) banned be without the prior, written consent of the lessor. This principle protects the lessor, who chooses with whom to enter into a contractual relationship.

9.2 Privileged family members

The main exception to this prohibition is transfers or subleases to privileged family members. A tenant can sublease the entire leasehold to or transfer his leasehold entirely to his spouse/legal cohabitant, (step) children and their partners, without requiring the consent of the lessor. This rule is essential to facilitate the family succession of farms.

9.3 Procedure for others

When a tenant wishes to transfer or sublease the lease to someone who is not a privileged family member, written permission from the lessor is required. The decree formalizes the application procedure:

Formal request: The lessee must send a request by secure transmission that includes their full identity, effective date, cadastral information and, crucially, stating that the lessee's silence will count as consent.
Tacit consent: An important novelty is that if the lessor does not respond within three months on a formally correct request, he is deemed to have tacitly consented. This places a duty of action on the lessor who wishes to resist.
Impact: In a lease transfer, the original tenant remains jointly and severally liable with the transferee unless there is a complete lease renewal. A sublease is subject to the rules of the Tenancy Decree, but ends by operation of law at the same time as the main lease.

9.4 Privileged lease transfer with lease renewal

A lease transfer to a favored family member may result in a lease renewal, which is very favorable to the successor. This means that a completely new first lease period of nine years starts. The conditions for this are:

The transfer is made to a privileged relative.
The lessee (or his heirs) gives knowledge of transmission to the lessor within three months of the successor's ingenuity.
There is no valid termination given by the lessor prior to notification.
The lessor signs no validated opposition against renewal.

The lessor may oppose the lease renewal (not the transfer itself) within three months of the notice with a subpoena on the basis of a limited number of serious grounds, such as an intention to self-operate within five years or serious offenses by the transferee.

10. Special events

10.1 Death of the lessee

Continuation by heirs: Upon the death of the tenant, the lease automatically continues in favor of his heirs or assigns. They are jointly and severally liable for the obligations. However, they have the right to terminate the lease within one year after the death with a notice of at least three months.
Designation of successor: The heirs may appoint a successor among themselves. In the absence of agreement, any heir may ask the justice of the peace to appoint him. The decree provides an order of precedence, giving priority to the surviving spouse or legal cohabitant.
Lease renewal: If the designated successor is a favored family member and this is communicated to the lessor in good time (within 3 months of the agreement or court decision), this leads to a lease renewal. The new lease period of nine years then starts retroactively on the day of the death of the previous tenant.

10.2 Death of the lessor

New information requirement for heirs: The decree introduces a new duty for the heirs of the lessor. They must provide the tenant within three months of death notify of the change of ownership. This notification must include the identity of the new owners, the new payment information and the cadastral designation of the parcels.
Continuity of tenure: The lease continues unchanged. In the absence of proper notice, the tenant may continue to pay the lease price as before, without any blame.

10.3 The situation of the retired tenant farmer

Lessor's right to information: From the moment a lessee reaches the legal retirement age, the lessor can formally ask him whether he receives a retirement or survivor's pension. The tenant then has 60 days to prove that he is still in business and not receiving a pension, or to designate a favored relative as successor.
Termination option: If the tenant receives a pension and cannot appoint a successor, the landlord can terminate the lease with a term of one to four years. This can be for the purpose of own exploitation, transfer to family, or lease/extinction to another viable farm.

11. Dispute Resolution

11.1 Competent court

The justice of the peace of the locality where the majority of the land is located shall have exclusive jurisdiction over all disputes relating to leases. Before any proceedings on the merits are initiated, a mandatory attempt at reconciliation often a first step, which can resolve many disputes without a full trial.

11.2 Common procedures

Validation of notice: This is the most common procedure. The lessor must ask the court to review the seriousness and validity of his reasons for termination and declare the termination valid.
Dissolution for breach of contract: When a tenant seriously violates his obligations (e.g. non-payment of rent, severe neglect), the lessor can claim the dissolution of the lease.
Preemption disputes: Discussions about the correct offer, the price, or a claim for substitution after disregarding the right, also come before the justice of the peace.

11.3 Important procedural aspects

Terms: Leasehold law is full of strict deadlines, often expiration periods, which cannot be renewed. Missing a deadline (e.g., for challenging a termination) may result in permanent loss of rights.
Proof: As mentioned earlier, a special regime of proof applies. The lessee can prove the existence of the lease by any means, while the lessor basically needs a writing.

12. Ecological aspects

Tenure law is explicitly used as a tool for Flemish nature and forest policy.

12.1 Afforestation and nature realization

The decree introduces new grounds of termination for lessors who wish to afforest their land or engage in nature development there. This must be accompanied by a livability test to protect the interests of agriculture (see 5.4).

12.2 Conditions for afforestation/nature

General requirements: The project must cover an area of at least 0.5 hectares, be held for at least 24 years and be realized within 3 years of the notice.
For all: A notice at any time is possible in delineated green areas.
For municipalities: Municipalities have more freedom and can also cancel outside green areas, subject to the approval of the city council.

12.3 The nature contract as an alternative

For flexible nature management on agricultural land, the nature contract (see 2.3.3) a way out. It allows land to be used for agricultural purposes while respecting ecological conditions, without being bound by the mandatory rules of the Leasing Decree.

13. Leasing by public boards

13.1 Transparent procedure

Public administrations (municipalities, CPASs, provinces, etc.) must lease their lands through a transparent procedure that provides equal opportunities to all candidates. Leasing is done by tender at the maximum permitted rental price.

13.2 Procedural requirements

Announcement: The lease must be announced through various public channels, with a subscription period of at least 30 days.
Assignment: Allocation must be made on the basis of objective criteria that have been published in advance. These criteria should not include cultivation rules.

13.3 Special rules

The Flemish government can impose minimum award criteria and exclusion criteria. Importantly, a former tenant whose lands were expropriated has a right of priority when those lands are re-leased.

14. Transitional law

14.1 General rule

The new decree applies since November 1, 2023 to all existing leases, even those before that date were closed.

14.2 Exceptions

There are some important exceptions:

Leasehold: Ground leases dated before Nov. 28, 2023 are not covered by the new decree.
Career lease: For existing contracts, the final age remains 65, not the new legal retirement age.
Duty to inform: The new information requirement for the lessee only applies to operation from Nov. 1, 2023.
Payment in kind: Existing in-kind payment agreements remain valid for payments related to the period prior to enactment.
New opportunities such as notice for alienation can only be included in new contracts, not existing ones.

15. Conclusion and practice tips

15.1 For lessors

Always make a writing: A clear, written agreement prevents discussions and provides access to new opportunities.
Consider new lease forms: Notice of alienation or fixed-term leases can be interesting if you want flexibility.
Respect procedures: Deadlines and formal requirements are strict. A procedural error can cost you your rights.
Document everything: Keep a record of all communications, payments and any determinations.

15.2 For leaseholders

Demand a writing: A written contract gives you certainty about the terms. You can enforce it now.
Know your pre-emption rights: This is one of your strongest rights. Respond to an offer promptly and correctly.
Document investments: Take photos and keep invoices of all improvements. This is crucial for final reimbursement.
Respond in a timely manner: Always respond by secure transmission to notices from the lessor and respect legal deadlines.

General recommendations

The new Tenancy Decree is complex and technical. It offers opportunities but also carries risks. It is crucial to:

Using the correct model contracts and forms.
Meticulously meet all legal deadlines.
Document all agreements and communications in writing.
Timely professional advice seek the advice of a lawyer in important decisions or disputes.

Conclusion

The Flemish Tenancy Decree attempts to strike a modern balance between the tenant security of the farmer, the rights of the owner, and today's ecological challenges. The consequences for your concrete situation depend on many factors.

Our law firm in Ghent assists both leaseholders and lessors in all aspects of leasehold law. From the drafting of a watertight lease contract to guidance in complex procedures concerning termination or pre-emption, our lawyers are ready with expert advice. Contact us to discuss your specific situation.

You have questions about your rights and obligations as a lessee or lessor? Contact our specialized lawyers.