Many commercial tenants sign a nine-year lease but still want to be able to terminate it in the meantime. For example, because their business is relocating, because they are retiring, or because the operation is not profitable. The law provides for this possibility — but the formalism is unforgiving.
The statutory rule: termination every three years
Article 3, paragraph 3 of the Commercial Lease Act gives you as tenant the right to terminate at the end of each three-year period. To do so, you must comply with two conditions:
A notice period of six months before the end of the three-year period
The form: by registered letter or by bailiff's writ
Important: you have this right under the law itself, even if it is not included in the lease agreement. The landlord cannot deny you this right.
The strict formalism: one day late is too late
The formal requirements are strictly applied. A judgment of the Court of Cassation of 29 September 2023 (AR C.22.0471.F) makes this painfully clear.
In the case at hand, a commercial tenant had sent a registered letter on Friday 28 August 2020 to terminate the lease as of 28 February 2021. On the same day, he had also notified the landlord by e-mail, and his counsel had contacted the landlord's counsel. The registered letter reached the landlord on Tuesday 1 September 2020 instead of no later than 31 August 2020 — one day late.
The Court ruled that the termination was not valid. The statutory six-month period had not been respected. The termination by the tenant is a unilateral act that is only complete when it actually reaches the landlord. The date of presentation at the landlord's address is decisive, not the date of dispatch.
In practice, this means: the tenant remained bound by the lease and had to pay damages for non-continuation.
E-mail is not sufficient, not even as confirmation
Many tenants think an e-mail or WhatsApp message is enough — especially if it is sent on time. Case law is clear: this is not the case.
The Justice of the Peace of Roeselare (JP Roeselare 7 December 2021) confirmed that a timely but formally irregular termination by e-mail has no effect. A formally valid termination by registered letter that was sent late or not to all landlords likewise has no effect.
In that case, the tenant was ordered to pay damages equal to two months' rent (the six months claimed was reduced because the landlords had waited too long to formulate their position on the validity of the termination).
What if you terminate without valid grounds?
A termination outside the three-year milestones is in principle not possible — unless the landlord agrees. If you nevertheless unilaterally terminate and vacate the premises, you remain bound until the next valid termination date, and the landlord may claim re-letting compensation.
Under the forthcoming Book 7 of the Civil Code, this re-letting compensation is enshrined in law (article 7.3.31 preliminary draft): upon dissolution of the lease at the tenant's expense, the landlord is presumed to suffer damage corresponding to the rent for the time reasonably needed for re-letting. The tenant can rebut this presumption with counter-evidence.
Amicable termination as an alternative
If you want to end your commercial lease early, an amicable agreement with the landlord is often the best solution. The Commercial Lease Act provides that such an agreement must be recorded by authentic deed or by a declaration made before the Justice of the Peace (article 3, paragraph 4).
Important: this formal requirement is mandatory in favour of the tenant. The Justice of the Peace of Beveren ruled that a landlord who agreed to an amicable termination cannot rely on the absence of the authentic deed to still claim rent (JP Beveren 28 September 2021).
In practice: always record an amicable settlement in writing, preferably by notarial deed or a declaration before the Justice of the Peace, to avoid later disputes.
Practical tips for a valid termination
Calculate your deadline generously. Send your registered letter at least two weeks before the final presentation date. Postal delays are not unusual and may cost you your termination.
Send to all landlords. If there are several landlords, you must send a separate termination notice to each of them.
Keep both the dispatch receipt and the delivery receipt. In the event of a dispute, you must be able to prove when the letter was presented.
Combine a registered letter with a bailiff's writ if necessary when the deadline is approaching.
Seek legal assistance. The cost of a lawyer is a fraction of the damages payable in the event of an invalid termination.
Would you like a complete overview of your position as a commercial tenant or landlord? Read our guide on the rights and obligations under commercial leases.