My tenants’ relationship is on the rocks: what about the lease?
26 January 2022
Depending on the type of relationship and the location of the property, different scenarios are possible. For persons who are married or legally cohabiting, a different rule applies than for persons who actually live together. This article is limited to tenancy agreements concluded in Flanders after 1 January 2019.
Married or legal cohabitation
If, as a landlord, you sign a rental agreement with one person who is married or legally cohabiting, the partner of that person automatically becomes a tenant. As a landlord, you must of course be aware of the marriage or legal cohabitation. It is the tenant’s duty to inform their landlord.
The fact that a spouse or legal cohabitant automatically becomes a tenant has as a consequence that you as a landlord have to serve notice on both partners. In addition, you can demand payment of the rent from both partners.
At the end of the marriage or legal cohabitation, the (ex-)partners have to decide between themselves who will continue the tenancy agreement. If the (ex-)partners do not reach an agreement on this, the court will decide who will continue the tenancy agreement.
If the tenancy agreement was signed by both tenants, a landlord can claim the tenant giving notice up to six months after the notice was given for payment of rent.
De facto cohabitation
When your tenants are actually living together, a distinction should be made between actual cohabitants who signed a rental agreement together and actual cohabitants of which only one of the partners signed the rental agreement.
Rental agreement signed by both tenants
As a landlord, it is advisable to have the rental agreement signed by both tenants. This is also to the advantage of the tenants. They must then both fulfil the obligations arising from the tenancy agreement, but also both enjoy the rights arising from the agreement. In most cases it is recommended to include joint and several liability in the agreement. Both tenants can then be held fully liable for all obligations of the rental agreement, such as for the payment of the full rent.
If the relationship ends, one of the tenants can individually terminate the rental agreement. The tenancy agreement will then continue to exist with regard to the remaining tenant. In that case, no termination fee has to be paid. The terminating tenant, who will leave the premises, can propose a new tenant to the landlord and remaining tenant. As the landlord, you and the remaining tenant have to agree on this person.
If the landlord and the remaining tenant do not agree with the proposed person, the judge will decide whether the candidate tenant should be accepted. The judge can refuse a candidate-tenant for three reasons. A first reason is that this proposed person does not offer sufficient guarantee from a financial point of view (i.e. if there is a risk that the rent will not be paid). In addition, the remaining tenant can veto the proposal. Finally, the candidate tenant can be refused if the number of persons who may occupy the premises according to the Flemish Housing Code is exceeded.
Until a new tenant is found, the landlord can hold the party leaving liable for the payment of the rent for another 6 months. This is also possible if this partner has already left the premises.
Lease agreement signed by one tenant
If your rental agreement was signed by one tenant (but that tenant actually lives in the property with a partner), the cohabiting partner has no rights, but also no obligations towards the landlord. Upon death or the end of the relationship, the partner who did not sign a lease cannot assert any rights to the property.
The tenant can request the landlord to accept the partner as tenant. If the landlord does not respond within 3 months, the court can decide that the partner becomes tenant.
The rules regarding de facto cohabitants apply to all de facto cohabitants, including those who are not in a romantic relationship.
Due to the different regulations that exist for different types of relationships and the rapidly changing legislation, it is best to consult a lawyer. He can analyse your lease agreement and ensure that you, as landlord, are optimally protected when your tenants end their relationship.
Translated with www.DeepL.com/Translator (free version)