Background
The ordinance adds a new chapter to the Brussels Housing Code and introduces a preferential right for tenants for whom the rented property is their main place of residence and who have a lease contract of at least nine years. If the owner decides to put the property up for sale, they are obliged to notify the tenant, inform them of their preferential right and communicate the essential conditions of sale. The tenant then has a period of 30 days to confirm whether they wish to accept or reject the offer of sale under the same conditions.
If the sale takes place without the tenant being correctly informed, and therefore unable to exercise their preferential right, the ordinance stipulates that the tenant has the option to bring an action for subrogation against the buyer. The tenant then takes the place of the buyer and will then reimburse the buyer for the purchase price and deed costs.
Objections to the ordinance
Various real estate agents and real estate associations lodged an appeal with the Constitutional Court, based on the argument that the preferential right violates property rights – both of the seller and the buyer. In their view, the preferential right restricts the seller’s freedom to select a buyer of their choice. According to the real estate sector, the legislature could also have achieved its goal – to strengthen housing security – by less drastic measures.
As regards buyers, it was argued that their property rights were violated by the possibility of subrogation. This provision would lead to legal uncertainty, since a buyer acting in good faith would risk losing their purchase, which would obstruct the peaceful enjoyment of their property.
Assessment by the Constitutional Court
The Court acknowledged that the preferential right and the possibility of subrogation do indeed restrict the property rights of both the seller and the buyer.
Nevertheless, the Court considers these restrictions justified and proportionate as they serve a legitimate purpose: to promote the right to decent housing, improving housing stability, and facilitate access to ownership for tenants. In the Court’s view, these objectives fall within the broad discretion of the legislature to realise the constitutional right to decent housing.
The Court stressed that the preferential right is proportional, inter alia, because it applies only in specific cases and must be exercised within a short period of time, the impact on the seller’s property rights is limited because they are first free to offer and negotiate the property on the market before having to communicate the terms to the tenant, and the subrogation by the tenant can only be invoked if the preferential right was not applied in a timely and correct manner.
Conclusion
With this ruling, the Constitutional Court confirms that the preferential right for tenants enshrined in the Brussels ordinance is consistent with the Constitution, and in particular with property rights. Although this right has already been enforceable since 2023, the ruling provides more certainty. The ordinance therefore remains in full force and underscores the importance of correctly complying with information and procedural obligations.
For more information on the conditions and exceptions of the preferential right, please refer to our previous newsletter: Brussels introduces preferential right for tenants
