Subletting is the practice whereby the commercial tenant (the sub-lessor) lets all or part of the leased premises to a third party (the subtenant) in return for rent.

Under Belgian law, the Act of 30 April 1951 on commercial leases governs this practice in Articles 10 and 11. The principle is clear:

  • Subletting is permitted by default, unless the lease expressly prohibits it
  • It may cover the whole or part of the commercial premises
  • The subtenant must carry on a business on the premises (not use them privately)

This freedom reflects the nature of the commercial lease: the legislature considers that the tenant should be able to adapt the operation of their business, including by sharing the premises with a third party.

Even though subletting is permitted by law, several conditions must be met:

Checking the main lease

The first step is to re-read the original commercial lease. If a clause prohibits subletting, any subletting without the landlord’s prior consent is void. Such a prohibition clause is perfectly valid and common in practice.

Written consent of the landlord

Where the subletting involves a change of use of the premises (for example, from retail to a hair salon), the landlord’s written consent is required even if the lease does not contain a prohibition clause.

Recommended formalities:

  • Draft a detailed written sublease agreement
  • Notify the landlord by registered letter (even if the lease does not require it)
  • Specify the duration, rent and intended use by the subtenant
  • Have the sublease agreement registered at the competent office

The most important point to remember: the head tenant remains solely liable to the landlord, regardless of the terms of the sublease.

In practice, this means that:

  • The head tenant continues to pay the full rent to the landlord, even if the subtenant fails to pay
  • The head tenant is responsible for damage caused by the subtenant
  • The head tenant must comply with all obligations under the main lease (permitted use, maintenance, insurance)
  • In the event of termination for the subtenant’s breach, it is the head tenant who is targeted

The landlord has no obligations towards the subtenant. There is no direct contractual relationship between them. The landlord may only take action against their tenant, who may then seek recourse against the subtenant if necessary.

The subtenant has more limited rights than the head tenant:

Right to renewal: the subtenant may request renewal of the sublease, but only from the head tenant and within the limits of the main lease. If the main lease expires, the sublease ends.

Protection under the 1951 Act: when the subletting covers the entire premises and the subtenant carries on their own business, they benefit from the protection of the Act. If it covers only part, the protection only applies if the statutory conditions are met.

Eviction compensation: if the head tenant refuses renewal without legitimate grounds, the subtenant may claim eviction compensation, calculated according to the same rules as for a main commercial lease.

To safeguard a commercial subletting arrangement in Belgium:

  1. Re-read the main lease: check for any prohibition or restriction clause
  2. Obtain written consent: even if the law does not always require it, written consent from the landlord protects all parties
  3. Draft a comprehensive agreement: specify the duration (which cannot exceed the main lease), rent, charges, permitted use and termination conditions
  4. Register the sublease: this gives the agreement a definite date and protects the subtenant in the event of a sale of the building
  5. Check the remaining duration of the main lease: the subtenant cannot acquire more rights than the head tenant

Subletting is a flexible tool for optimising the use of commercial premises, but it demands rigour and transparency towards all parties involved.