Assignment is possible in principle without consent
In principle, yes. The Law of 30 April 1951 allows the assignment of a commercial lease without the landlord’s prior consent, unless the lease contains a prohibition clause. The assignee must continue the same commercial activity or one that is not objectionable to the landlord. The original tenant remains jointly liable unless the landlord expressly releases them.
The right to assign a commercial lease without the landlord’s consent is a significant protection for commercial tenants. It allows business owners to transfer their business, including the lease, to a buyer. The rationale is that the commercial lease is closely tied to the goodwill (fonds de commerce) of the business.
However, this right is not absolute. The landlord can protect themselves by including a prohibition or restriction clause in the lease. Most commercial leases in practice contain such a clause, making the landlord’s consent necessary.
Conditions for valid assignment
For the assignment to be valid without the landlord’s consent:
- No prohibition clause in the lease
- Same or similar activity — the assignee must continue the same commercial activity, or an activity that the landlord cannot reasonably object to
- Written notification — the landlord must be notified of the assignment by registered letter or bailiff’s writ
- Transfer of all rights and obligations — the assignee takes over the lease with all its terms
- Joint liability — the original tenant remains jointly liable with the assignee for all lease obligations
| Element | Without consent | With consent |
|---|---|---|
| Prohibition clause in lease | Not possible | Consent overrides clause |
| Change of activity | Not allowed | Can be negotiated |
| Joint liability of assignor | Maintained | Can be waived |
| Landlord notification | Required | Included in consent |
Even if the lease does not prohibit assignment, it is advisable to inform the landlord in advance and seek their agreement. This creates goodwill and may allow you to negotiate the release from joint liability, which protects you after the assignment.
Effect of prohibition clauses
Most commercial leases include a clause prohibiting or restricting assignment:
- Total prohibition — the tenant cannot assign under any circumstances without consent
- Conditional prohibition — assignment is allowed only with the landlord’s written consent
- Partial prohibition — assignment is allowed for the same activity but not for a different one
A prohibition clause is valid and enforceable. If the tenant assigns the lease in violation of such a clause, the landlord can seek annulment of the assignment and potentially terminate the lease for breach.
However, the landlord’s consent cannot be unreasonably withheld if the lease merely requires consent (as opposed to an absolute prohibition). Unreasonable refusal can be challenged before the justice of the peace.
Regional specifics
Brussels-Capital Region
Commercial lease law is federal and applies uniformly across Belgium. The Law of 30 April 1951 governs commercial lease assignments in Brussels just as in other regions. Brussels courts apply the same principles regarding consent and prohibition clauses.
Walloon Region
The same federal law applies in Wallonia. Commercial lease assignments follow identical rules. Walloon courts have confirmed that a prohibition clause must be clear and unambiguous to be enforceable.
Flemish Region
Federal commercial lease law applies equally in Flanders. Flemish courts interpret the assignment provisions consistently with the other regions. The Flemish residential lease decree does not apply to commercial leases.
Law of 30 April 1951 on commercial leases, art. 10 (right to assign the lease) — Text on Justel. Assignment is a federal matter, uniform across all regions.