A fire in your commercial premises is both a commercial and a legal crisis. The question of who is liable determines whether you are entitled to compensation, whether you have to close your business, and whether you must defend yourself against unexpected invoices. The legal framework is complex and evolving.
The basic rule: Article 1733 of the old Civil Code
Under the current Article 1733 of the old Belgian Civil Code, there is a reversal of the burden of proof: the tenant is liable for fire, unless he proves that the fire occurred without his fault.
At first glance, this appears to be a harsh rule for the tenant, but the practice is more nuanced. The tenant does not need to identify the cause of the fire himself — he only has to show that the fire cannot be attributed to him. If the cause remains unknown, the trial judge must assess whether the tenant has provided sufficient counter-evidence.
Liability can be apportioned
An important ruling of the Ghent Court of Appeal (Ghent, 3 November 2022) confirmed a rule often overlooked in practice. Articles 1721 and 1733 of the old Civil Code do not exclude an apportionment of liability where the fire arose from both a fault of the tenant and a defect in the leased property.
In the case decided by the Court of Appeal, the landlord had leased a dwelling without a smoke detector. The Court held that the landlord had thereby committed a criminal offence (the Flemish Housing Code requires smoke detectors in all residential units). Liability was therefore partly attributed to the landlord.
Comparable safety obligations apply to commercial premises, particularly where there is also a residential component. A landlord who breaches these obligations may be held partly liable even for a fire caused by the tenant.
Landlord in breach of the delivery obligation
An even further-reaching scenario: the fire was not the tenant's fault, and the cause lies in a defect for which the landlord is responsible. In such a case, it is the landlord who becomes liable.
A justice of the peace in Oudenaarde dealt with a typical case: a restaurant was partially closed due to a fire (JP Oudenaarde, 6 January 2025). The tenant's liability for the fire was rebutted by the facts. The landlord was held liable for failing to comply with his delivery obligation. There was no force majeure.
Outcome: the lease was terminated at the landlord's expense. The tenant was entitled to damages, including for loss of a chance (loss of turnover), but had to concretely prove the extent of his damage.
This shows that a tenant who knows for certain that he did not cause the fire is not automatically paralysed. Active legal proceedings against the landlord can both release him from the lease and secure compensation.
Fire insurance: more than a formality
Many commercial leases oblige the tenant to take out fire insurance. That insurance plays a crucial role in the event of fire:
For the tenant: covers damage to contents and the business, plus any liability towards the landlord and third parties.
For the landlord: covers damage to the building itself. Where the tenant is liable, the landlord's insurer will step into the landlord's rights (subrogation) and recover the damage from the tenant or his insurer.
An important principle under the Insurance Act: an insurer aware of the commercial use of the premises cannot subsequently invoke an aggravation of the risk as a result of that use (Article 81 Insurance Act). This was confirmed in JP Binche, 25 April 2024.
Investigation into the cause of the fire
After every serious fire, a criminal investigation is typically opened to establish the cause. Such investigations often take months or even years. During that period, the legal situation is uncertain.
The justice of the peace of Bruges was faced with a typical dilemma (JP Bruges, 24 January 2022). An apartment had been completely destroyed by fire. The lease was terminated by operation of law. The tenant requested release of her rental deposit.
The justice of the peace held, however, that such release was premature. The rental deposit also serves as protection against possible tenant damage, including fire damage insofar as it did not arise "without the fault" of the tenant. As long as the cause of the fire was not established — and here arson could not even be ruled out — the deposit remained blocked.
Practical lesson: even if your premises are completely destroyed, you cannot automatically count on release of the deposit or compensation. Await the criminal investigation and build up your own defence.
What will change under Book 7 of the Civil Code?
The upcoming Book 7 of the Civil Code restructures the liability rules on fire. Article 7.3.25 of the draft provides:
"Upon termination of the lease, the tenant shall return the property to the landlord in the same state as when he received it, subject to damage resulting from age, normal use and force majeure. The tenant is liable for other damage to the property arising during the lease term, including damage resulting from fire, unless he proves that such damage arose without his fault."
The core rule remains the same: the tenant is liable unless he proves that the fire arose without his fault. The shift lies in the broader context of Book 7: the extended conformity obligation of the landlord under Article 7.3.6 (guarantee obligation) will make it easier for the tenant to show that a defect in the premises, or the absence of safety measures, contributed to the origin of the fire.
Practical tips in the event of fire
Immediately after the fire:
Notify the fire brigade and the police, and ensure that an official report is drawn up
Notify your insurer and your landlord as soon as possible
Take photos and videos of the damage before anything is cleared away
Preserve all invoices and documents of your business
In the first weeks:
Request the fire brigade report and, where applicable, an expert report from your insurer
Notify your accountant of the tax consequences
Do not unilaterally discuss liability with the landlord without legal advice
In case of dispute:
Ensure you keep ALL evidence — including contradictory documents
A lawyer can file a civil party petition in criminal proceedings to obtain access to the criminal file
Work with an independent loss adjuster who represents your interests, not just the insurer's
Reius Advocaten in fire cases
Fire cases touch on lease law, insurance law, liability law and sometimes criminal law. Reius assists both tenants and landlords with:
Assessment of liability based on the facts and the policy
Claims for release of the rental deposit or damages
Defence against unjustified claims by insurers
Guidance during criminal investigations (civil party petitions)
Advice on renegotiation or termination of the lease after fire
Would you like a full overview of your position as a commercial tenant or landlord? Read our guide on the rights and obligations under a commercial lease.