Pay attention: an office lease is not a commercial lease!

  1. Definition

Office lease agreement Bail commercial
An office lease agreement is for all activities that do not come under any retail business, craft or industry, meaning a commercial activity that is not retail or is not open to the public. A commercial lease agreement is for buildings or parts of buildings that the tenant will mainly use to run a retail business or craft activity that is in direct contact with the public.
Who is it for?

  • Examples: sales to wholesalers only, sales by appointment, etc.
  • Members of a “liberal profession” (profession libérale) covered by the non-commercial profits scheme: architects, interior designers, doctors, dentists, nurses, analysis laboratory managers, notaries, accountants, surveyors, lawyers, driving instructors, insurance experts, graphic designers, town planners, technical consultants, court bailiffs, auditors etc. but also business introducers, consultants and other strategic advisers.
 Who is it for?

  • Examples: hospitality sector, a bakery, florist, grocery store etc.
  • Members of a liberal profession who also carry out commercial transactions: insurance brokers, real estate agents, property managers, etc.
  • Any activity that involves contact with the public without a prior appointment.

  1. Comparison

  Office lease agreement Commercial lease agreement
Legal status No specific legal status. Common law lease. Commercial leases are governed by the Belgian law of 30 April 1951.
Provisions The office lease (bail de bureau) is governed by articles 1708 to 1762bis of the Belgian Civil Code. However, the provisions of the Civil Code are “supplétive” (for guidance), so there is considerable contractual freedom. The general provisions of the Civil Code relating to real estate leases (articles 1708 to 1762bis) also apply.
Tenant A natural or legal person. The tenant must be registered with the Crossroads Bank for Enterprises.

  1. Specific features of a commercial lease: term and renewal

  • Commercial leases have a minimum 9-year term, which is intended to protect the tenant by allowing them to run a business with a high degree of visibility over a long period of time. The tenant can carry out the interior finishing work needed for the business and depreciate the cost over the term of the lease. They can also build up the value of the business (fonds de commerce), which they can then sell at the end of the lease.
    The contract may, of course, specify a longer term, but in that case it must be signed in the presence of a notary. However, the term can never be shorter.
  • This means the landlord cannot terminate the lease before the end of this term. Exceptions are possible, however, as long as they are explicitly set out in the contract. The contract may, for example, specify that the lease can be terminated at the end of each 3-year period. In addition, the landlord can only terminate the lease in order to use the building to run a business themselves. This business can be run by the owner, their spouse, or the (grand)children or (grand)parents of the owner or their spouse.
  • The tenant is entitled to renew the lease 3 times. To exercise the right to renew, the tenant must notify the landlord by registered letter between the 18th month and the 15th month before the lease expires.
    After the first 9-year term, the tenant is entitled to renew the lease for 9 years 3 additional times. This means that at the end of the ninth year, the tenant is able to remain in the building for a maximum of 27 years.

  1. Specific features of an office lease (bail de bureau) or warehouse lease (bail d’entrepôt): minimum obligations of the two parties

The common-law lease is used for renting offices or warehouses. This can be modified and adapted for use in a wide range of situations.

Obligations of the landlord:

  • To make the property available on the date stipulated in the lease agreement, allowing the tenant to use the premises.
  • To carry out maintenance that is required for the tenant’s comfort (safety, health, etc.).
  • To respect the tenant’s privacy and refrain from entering the premises without their prior consent.

Obligations of the tenant:

  • To respect the use of the premises specified by urban planners (as an office, warehouse, car park, etc.).
  • To pay the rent and charges without delay on the due dates specified in the contract.
  • To maintain the property and return it in the same condition as specified in the initial inventory.

These differences have significant consequences for both parties to the contract. Tenants must be aware of their rights and also their obligations when signing a lease, whether it is of the professional or commercial type. This is also true for the landlord. Esset’s experts can help to prevent legal disputes between the parties.

 

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