Pop-up shops meet a commercial need and have become an economic reality. Faced with the growing popularity of temporary shops and restaurants, the Flemish government adopted a decree on 16 March 2016 establishing a statutory framework for short-term commercial leases . The Walloon Region followed, and its decree of 15 March 2018 entered into force on 1 May 2018. As far as the Brussels-Capital Region is concerned, however, discussions are still ongoing.
The main characteristics of the statutory framework in the Flemish and Walloon Regions can be summarised as follows:
- Both decrees apply to commercial leases for a building or part thereof concluded in writing for a period of one year or less, where the express purpose of the lease is to conduct a retail or artisan activity in direct contact with the public.The Flemish decree specifically states that the manner in which dealings between the lessee and the public are organized and whether the lessee owns the business carried out at the leased premises are irrelevant.
- The lease cannot last for more than one year and ends automatically upon expiry of its term.
- A short-term commercial lease may be renewed subject to the following conditions: (i) the parties expressly agree in writing to renewal of the lease (ii) at the same conditions as the initial lease, (iii) provided the total duration of the lease (as extended) does not exceed one year.The Walloon decree provides that if the lessee remains in the leased premises after expiry of the lease, with no written objection from the lessor in the month following the expiry date, and thus occupies the leased premises for a period of more than one year, the lease will be considered an ordinary commercial lease, governed by the rules applicable to such leases (i.e. the Act of 30 April 1951) and deemed to have been entered into for a term of 9 years as from the date on which it originally entered into force.A similar provision is provided in the Flemish decree. A short-term commercial lease terminates automatically upon expiry of its agreed term. Extension or renewal is possible provided it is formalized in writing and the total duration of the lease does not exceed one year. If the lease extends beyond one year, it will be deemed a commercial lease with a term of 9 years, governed by the provisions of the Act of 30 April 1951.
- The lessee may terminate the lease at any time by giving at least one month's notice. The parties to a short-term commercial lease can also terminate the lease by mutual consent in writing.
- Subletting and assignment of short-term commercial leases are prohibited in both regions. The Walloon decrees specifies however that the parties may "expressly agree otherwise in writing".
- Unless expressly prohibited in the lease agreement, the lessee can make changes to the leased premises in order to adapt them to its business provided the costs do not exceed one year's rent. However, two conditions are stipulated: (i) safety, health and esthetic value must not be compromised and (ii) the lessor must be informed by registered letter before the start of the works.
- At the end of the lease, the lessor may require that the premises be restored to their original condition, unless agreed otherwise. The lessee is not entitled to any compensation for improvement works made to the leased premises.
- Unless agreed otherwise, the decrees provide that the taxes applicable to the property are assumed included in the rent.
- If a short-term commercial lease is registered, the lessee cannot be evicted by the purchaser of the property should the leased premises be sold.