In Belgium

Subrogation (subrogation / indeplaatsstelling) is the legal mechanism by which a person who has paid another’s debt is substituted into the creditor’s rights and actions against the debtor. In rental law, it most commonly arises in insurance contexts.

Two forms:

  • Legal subrogation (subrogation legale): operates automatically by law when an insurer pays a claim. The insurer inherits the insured’s rights against the party responsible for the damage.
  • Conventional subrogation (subrogation conventionnelle): agreed between parties, typically in a contract clause.

How it works

Insurance context. A landlord’s fire insurance covers damage to the building. The insurer pays the claim (e.g. 25,000 EUR for water damage). The insurer then has the right to recover this amount from the responsible party — for example, the tenant who caused the damage through negligence or a contractor whose faulty plumbing caused the leak.

Tenant’s liability. Under Article 1733 of the Civil Code, the tenant is presumed liable for fire damage to the rented property. If the landlord’s insurer pays, it can subrogate against the tenant. This is why tenant fire insurance (assurance incendie du locataire) is essential.

Waiver of subrogation. Some insurance policies include a “waiver of subrogation” clause for certain categories (e.g. tenants, family members). This means the insurer agrees not to pursue these parties after paying a claim.

Preservation of rights. The insured must not take any action that would compromise the insurer’s subrogation rights. For example, signing a release with the responsible party before the insurer has exercised its rights could void the coverage.

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Good to know
Always check whether your landlord’s fire insurance contains a waiver of subrogation clause in favour of tenants. If it does, the insurer cannot pursue you after paying for damage you caused. If it does not, you need your own tenant fire insurance to cover this risk.

Practical example

A tenant accidentally causes a kitchen fire. The landlord’s fire insurance pays 40,000 EUR for repairs. The insurer then subrogates against the tenant to recover this amount. The tenant’s own fire insurance (tenant liability cover) reimburses the landlord’s insurer. If the tenant had no insurance, they would owe 40,000 EUR personally. This is why tenant fire insurance is mandatory in most Belgian lease contracts.