The Ordinance offers additional protection to tenants on the Brussels rental market in five ways: (1) it broadened the application scope of anti-discrimination, (2) there are proactive discrimination tests, (3) it extended the list of criteria for protection, (4) it added two new forms of prohibited discrimination, and (5) there is greater clarity on what information—and when—they may be requested from tenants.
The Ordinance has entered into force on 30 September 2022, except for Article 11, which will become effective from 20 March 2023, and concerns the information that may be requested from the tenant.
1. Broadened scope of application
The Brussels Housing Code has a separate section that protects prospective tenants against discrimination when they access the housing market. The new Ordinance broadens the scope of this section so that the protection is valid throughout the entire term of the tenancy contract, thus not just the time when one is seeking housing. Tenants will therefore continue to be protected against discrimination if their situation changes during the tenancy period.
2. Proactive discrimination tests
In December 2018, the Brussels Parliament allowed Brussels Housing inspectors the possibility to use discrimination tests to detect and establish illegal discrimination in the rental market and to impose sanctions. These tests could be “mystery-client” tests whereby a comparison is made between how a landlord treats two prospective tenants who are similar except for one protected criterion, such as a disabled person and another who is able-bodied. In practice, these tests did not achieve the desired result. Detecting the discrimination was strictly framed within three cumulative conditions: (i) there must be a complaint or prior reporting of discrimination, (ii) there must be a serious indication of discrimination, and (iii) incitement is prohibited.
The Ordinance eases the discrimination test criteria. The Regional Housing Inspection Directorate is now authorised to carry out discrimination tests on its own initiative and proactively, without requiring a complaint or prior reporting or a serious indication of discrimination. However, incitement to discriminate remains prohibited.
In addition, the Regional Housing Inspection Directorate is authorised to outsource discrimination testing to companies or recognised associations.
3. Protection criteria list extension
The Brussels Housing Code measures discrimination according to a (direct or indirect) distinction using one or more protection criteria that cannot be justified objectively. Examples of protection criteria include gender, race, skin colour, national or ethnic origin, age, political beliefs, state of health.
The Ordinance introduces several new protection criteria, particularly: residency status, trade union affiliation, family responsibilities, adoption, co-mothering and paternity.
For example, a person with a temporary residence permit could be discriminated in the rental market if he or she is denied housing, unless the reason for the difference in treatment is justified by a legitimate purpose and the means used to achieve that purpose are appropriate and necessary.
The Ordinance does not clarify what is considered a legitimate purpose, however. But the draft Ordinance does give some examples of permissible legitimate purposes. These include preventing overcrowding of the property or preventing the family’s financial resources from becoming insufficient to guarantee payment of rent.
The Ordinance also adds that discrimination on grounds of medically assisted reproduction, breastfeeding, gender characteristics and gender identity, or gender expression is considered sex discrimination.
The Ordinance specifies only one case in which a difference in treatment is justified. Direct discrimination on grounds of one’s gender does not constitute discrimination if the supply of goods and services that is exclusively or essentially intended for the members of one sex is objectively justified by a legitimate purpose and if the means to achieve that purpose are appropriate and necessary.
4. Sexual harassment and denial of reasonable adjustments as new forms of direct discrimination
Besides direct and indirect discrimination, instructing another to discriminate and harass, sexual harassment and denial of reasonable adjustments are now two new forms of discrimination.
There is sexual harassment when one’s behaviour is characterized by unwelcome or inappropriate remarks or physical advances with sexual overtones that intend to violate or cause the violation of a person’s dignity. An example of this is when a threatening, hostile, insulting, humiliating or offensive situation is created from such unwelcome or inappropriate behaviour.
Discrimination can now include the situation in which a disabled person is denied a request for reasonable adjustments that enable them to access the property. An example of this is a request to have a bathroom grab bar installed but is denied by the landlord. Refusal to make adjustments does not constitute discrimination if the adjustment creates a disproportionate burden on the landlord.
5. Clarification of what information can be requested and when
The Ordinance clarifies what information a landlord or a real estate agent may request from the prospective tenant and when they can request it.
- Before a visit, they may request only the prospective tenant’s name and method of communication with him or her.
- After the visit and during the candidature as tenant, they may request information about the income and a household composition to determine whether the property for rent is suitable, given its surface area.
- When drafting the tenancy contract, they may request information regarding marital status and official documents proving the tenant’s identity and capacity.
Thus, the landlord or a real estate agent can still select a tenant based the tenant’s financial means, but only after the tenant has visited the property.
If the Regional Housing Inspection Directorate establishes some kind of discrimination (whether through conducting a discrimination test or not), and if the discrimination may also constitute a criminal offence, the official report describing the offence is transmitted to the Public Prosecutor’s Office, which will decide whether to prosecute the landlord or the real estate agent for the alleged offence. If the Public Prosecutor’s Office decides not to prosecute the landlord or the real estate agent, it will impose an administrative fine of €125 to €6,200.