The Tenant’s Right of Preference in Brussels: A Disguised Right of Pre-emption? Practical Considerations

1. A “Disguised Right of Pre-emption” in Practice

Although this does not constitute a classic right of pre-emption, whereby the tenant simply steps into the position of a third-party purchaser, the system does require the seller to first submit a concrete and complete offer to sell to the tenant. In that sense, this right of preference may be regarded as a “disguised right of pre-emption.”

This qualification is not merely rhetorical. The notification to the tenant must already include the price and all terms and conditions of the sale. If the tenant accepts these conditions, the sale is immediately concluded. The tenant is therefore not merely given the opportunity to submit a first offer but is presented with a genuine and binding offer to sell, the acceptance of which directly results in a completed transaction.

In practice, this mechanism closely resembles the operation of a traditional right of pre-emption and significantly restricts the seller’s contractual freedom. It therefore requires particular attention from all parties involved, and especially from the notary.

2. Conditions of Application and Excluded Transactions

The tenant’s right of preference, as provided for in the Brussels Housing Code, grants the tenant, under certain conditions, a preferential position in the event of the sale of the leased property. This right applies in particular to nine-year leases relating to the tenant’s principal residence (thus excluding short-term leases) and requires that the tenant is effectively domiciled at the property in question.

However, there are also situations in which the right of preference does not apply. This is the case, for example, where a building comprising multiple residential units is sold in its entirety to a single purchaser for a global price, as the property cannot meaningfully be offered separately to an individual tenant. Similarly, the right does not apply where different parts of the same building legally constitute a single indivisible lot under the applicable statutes. The Brussels Housing Code is based on the indivisible nature of the property.

It is important that the building is genuinely sold as a whole; it is not sufficient that a purchaser ultimately acquires the entire building through successive purchases while already owning other parts.

Prior to the sale, the seller must verify whether these conditions are met and whether the right of preference must effectively be offered. This assessment is essential, as failure to comply with this right may have consequences for all parties involved, including the purchaser and the notary.

3. Procedure in Private Sales

In the case of a private sale, a two-step procedure applies.

First, prior to entering into the sale agreement, the landlord must offer the right of preference to the tenant. This is done by registered letter with acknowledgment of receipt, containing at least the following elements:

• the intention to sell;
• the price;
• the terms and conditions of the sale;
• the existence of the right of preference.

This notification constitutes a genuine offer to sell in favour of the tenant.

If the landlord fails to do so, the same obligation rests successively on the real estate agent and ultimately on the notary. This once again underlines the notary’s active duty of verification.

In addition, a second offer must be made if the landlord ultimately wishes to sell on more favourable terms or at a lower price than those initially communicated to the tenant.

In the absence of a timely response, the tenant is deemed to have waived their right of preference.

Separate rules apply to public sales, but these fall outside the scope of this contribution.

4. The Role of the Notary

The increasing complexity of real estate transactions reinforces the notary’s role as a central actor.

In accordance with the general principles governing the duty to inform, the notary must fully and accurately inform the parties of the rights, obligations and encumbrances arising from the contemplated legal transaction. This obligation encompasses not only a duty to inform, but also duties of investigation, verification and warning. The notary may therefore not limit themselves to merely formalising the parties’ intentions but must actively assess whether there are legal elements that may affect the transaction.

In the context of the right of preference, this means that the notary must:

• verify whether the right applies;
• correctly assess its scope;
• inform the parties of its implications for the sale;
• warn them of the risks associated with any failure to comply.

These obligations are all the more important in a context where real estate transactions are becoming increasingly complex and risky.

5. Liability Risks

Failure to comply with the right of preference may have significant consequences for all parties involved.

For the seller, this may lead to disputes or claims for damages. For the purchaser, it may result in uncertainty regarding the acquisition of the property.

A tenant whose right of preference has been disregarded may also bring an action for substitution against the purchaser within the statutory time limit. This can seriously undermine the legal certainty of the transaction.

The risks are also real for the notary. If they fail to properly fulfil their duties of information, verification or warning, this may give rise to liability. It is indeed one of the notary’s core responsibilities to prevent parties from entering into an agreement without a full understanding of the legal implications of the right of preference.

6. Conclusion

The tenant’s right of preference in Brussels is a legal mechanism which, despite its specific structure, may have an impact closely resembling that of a traditional right of pre-emption.

The characterisation as a “disguised right of pre-emption” reflects this reality: the right restricts the seller’s contractual freedom, creates potential uncertainty for the purchaser and imposes an increased responsibility on the notary.

In an increasingly complex real estate landscape, a thorough understanding of this mechanism is indispensable. Underestimating the right of preference may lead not only to delays in the sale process but also to legal uncertainty and potential liability.

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For further information or assistance, you can always contact the Real Estate team at Andersen in Belgium.
Ulrike Beuselinck (Partner – Mediator)