You have leased commercial premises to operate a restaurant, a fitness centre, a hair salon or another business. After a few months, or even a few years, it turns out that the required urban planning permit or environmental permit was never issued, or that the zoning plan prohibits commercial activity at that location. What are your rights?
The landlord's delivery obligation
Under Article 1719 of the old Belgian Civil Code, the landlord is required to deliver the property in such a way that the tenant can use it in accordance with the agreed purpose. Under the future Book 7 of the Civil Code, this obligation is reinforced: Article 7.3.6 expressly provides that the landlord is liable for any lack of conformity, even if he had no knowledge of it and could not have known.
Concretely: if you lease a property to operate a restaurant, the landlord must ensure that the necessary permits exist — or can reasonably be obtained. The Belgian Supreme Court confirmed in 2024 that where the lease relates to a property specifically intended for a particular operation, the landlord must provide enjoyment consistent with that purpose (Cass. 10 October 2024, AR C.23.0420.F).
The absence of a permit is not a mistake — but a breach of the delivery obligation
Many tenants, upon discovering a permit issue, attempt to have the lease declared null and void on the grounds of mistake. This rarely succeeds.
A justice of the peace in Oudenaarde dealt with a typical case: commercial premises had been leased as a "restaurant", but were subsequently found to lie in a municipal "low-commercial" zone, prohibiting hospitality businesses (JP Oudenaarde 21 November 2022). The judge ruled that mistake can only be a ground for nullity if it exists at the time the contract is concluded. A permit requirement that only arises later and cannot be obtained does not affect consent at the time of contracting.
However: the landlord did fall short in his delivery obligation. He should have delivered a property suitable for the agreed purpose, including the administrative and statutory accessories. Result: termination of the lease at the landlord's expense, and liability of the real estate agent for breach of his duty to inform.
Change of use without a permit: absolute nullity
In more serious cases, the lease may even be struck with absolute nullity for breach of public order.
The court in Leuven ruled on a commercial lease where the landlord knowingly and willingly made available commercial space designated as "retail", while he had known for years that only a "craft" activity was permitted on the premises (Leuven District Court 28 November 2018). The judge held that such an agreement is intended to maintain a situation contrary to public order, given the criminal sanctions applicable to urban planning offences.
Important consequences of such absolute nullity:
The limitation period for the action for nullity is ten years (Article 1304 of the Civil Code)
The void agreement is deemed never to have existed
Any interested party may invoke the nullity
The nullity cannot be "confirmed" by, for example, mere silence
In the Leuven case, however, it was ruled that the reciprocal performances — the enjoyment of the leased premises on the one hand and the rent on the other — were not capable of restitution. The tenant therefore obtained no refund of the rent.
Reimbursement of rent upon termination
In other cases, reimbursement of rent was ordered. A judge in Limburg ruled that a landlord who had not obtained an environmental permit for a change of use had breached his delivery obligation, leading to termination of the lease and the reimbursement of the rent unlawfully collected (Limburg District Court, Hasselt division, 4 May 2023).
Under the new Civil Code (Articles 5.115 to 5.124), the rules on restitution are now expressly regulated:
Restitution takes place in kind or, if impossible, in estimated value at the date of restitution
The party liable for restitution must be compensated for necessary expenses and useful expenses that have generated added value
The judge may refuse restitution to the party that deliberately breached public order
Housing quality standards in mixed use
A particular case: commercial premises with a residential component. The justice of the peace in Zoutleeuw (JP Zoutleeuw 8 June 2023) confirmed that when commercial premises with a residential component are leased, the residential part must comply with the regional housing quality standards, regardless of whether the lease is classified as a commercial lease or a residential lease.
Breach of these standards leads to the absolute nullity of the lease. The judge must even find it of his own motion — even if none of the parties invokes it. A partial nullity (limited to the residential part) is possible, but only if both parties agree.
Subdivision without a permit: who bears the burden of proof?
Another practical issue: the property is the result of the subdivision of a larger building, without a permit ever having been obtained for that subdivision. The Brussels court ruled that the burden of proving the urban planning offence rests on the party invoking it (Brussels District Court 15 December 2022). You must therefore demonstrate that the subdivision took place on a date when a permit was required — which is not always easy in practice.
In Brussels, it is generally accepted that the subdivision of a building has required a permit since 9 February 1996. Subdivisions predating that date did not require a permit and cannot be considered irregular.
Moderation of nullity
Under the new Civil Code (Article 5.57 CC), an agreement that does not meet the validity conditions is in principle void — but the agreement remains valid where it appears from the circumstances that the sanction of nullity would be manifestly inappropriate, having regard to the purpose of the rule breached.
This provides the judge with an important moderation tool. Not every permit issue necessarily has to lead to the annulment of the entire agreement — sometimes partial nullity or damages are more appropriate.
Reius Advocaten in this area
Permit issues in commercial leasing touch simultaneously on lease law, administrative law and urban planning law. Reius assists both tenants and landlords in such matters:
Investigation of the permit status prior to signing
Claims for termination for breach of the delivery obligation
Recovery of rent paid
Defence against claims for nullity
Assistance with regularisation procedures
Would you like a full overview of your position as a commercial tenant or landlord? Read our guide on the rights and obligations in commercial leases.