The new law on health, hygiene, safety and suitability conditions for rented accommodation[1] is likely to severely restrict the rights of certain co-owners, prohibiting them from renting out their property under threat of heavy penalties.

While these measures make sense for houses converted into individual rooms for rent, the new criteria also affect the common areas of co-owned properties as soon as an apartment is rented out. However, an individual co-owner has no decision-making power over the work to be carried out on the common areas, let alone the location of the bedrooms at the front or rear of the property.

Given that all rented accommodation must comply with the new criteria by 23 December 2021 at the latest, the problem is becoming urgent, especially as the law provides for criminal penalties for non-compliance with the new criteria.

1. Criteria applicable to common areas

The author considers that, based on the definitions given by the law and the regulations, the criteria apply mainly[2] to private areas within a co-ownership, but not exclusively.

This is because some criteria apply to parts of the building that are often common areas in a co-ownership. We will limit ourselves here to the two measures that we consider most serious:

For example, in any building in which rooms are rented or made available, a second emergency exit must be provided on the same floor.

Furthermore, in any building of a certain size, access to the stairwell must be via fire-resistant partitions for 60 minutes and fire doors for 30 minutes, as well as smoke-resistant partitions and doors.

The complete list of criteria for common areas can be found on our website by clicking on this link.

2. Lack of decision-making power

In the event of non-compliance with the new criteria, the law holds the owner and/or the “operator” responsible, a term which, according to the author, should not apply to the property manager. [3]

It is therefore, in principle, the owners who must vote on the carrying out of the compliance work at the general meeting of co-owners.

In most cases, this compliance work should consist wholly or partly of conversion or improvement work, requiring either an absolute majority or a three-quarters majority of votes, which may be difficult to obtain!

As a result, numerous disputes may arise, including two that immediately come to mind:

• In a co-ownership where the required majority votes in favour of compliance work: the occupying co-owners (non-landlords) must undergo the repair work from which they do not benefit.

• In a co-ownership where the required majority votes against the compliance work: the occupying co-owners (non-landlords) can block the work that the landlord co-owners must have done in order to be able to rent out their flats.

Even more serious is the fact that in certain cases, even with the best of intentions, the co-owners, even if they vote in favour of all possible works, will not be able to remedy a ban on renting. This is particularly true for residences that are attached on both sides, where it will not be possible to install a secondemergency exit (for firefighters to access a window with their ladders to evacuate occupants in the event of a fire).

The owners of these rear properties, often purchased for their quieter location, would therefore no longer be able to rent out their property, at the risk of heavy penalties.

3. Serious consequences

The law punishes any owner or operator who does not comply with the new criteria with a fine of €251 to €125,000 and/or imprisonment for 8 days to 5 years.

The new criteria apply from 23 December 2021 to all properties rented or made available from that date and rented continuously since 1January 2020; it should have been in force since 1 January 2020 for all new leases signed after that date…, even though many co-owners and even professionals will not have realised that it applies to co-owned properties.

The aim of the law was certainly to clean up the overheated market for rooms, dwellings and buildings let for rent, given the shortage of affordable housing and the excesses committed by landlords letting rooms in poor condition, which were often the only dwellings available at even remotely affordable prices.

However, the new criteria certainly have a significant impact on landlords in co-owned properties, as they also apply to common areas and, if complied with, are likely to further increase rents as fewer properties will be available for rent.

The law should have exempted co-owned properties and addressed the issues affecting them through safety measures applicable to the construction of all new residences and valid only for the future.

The author also wonders whether the law would violate the constitutional principle of equality before the law or unfairly call into question the right to property itself.

[1] Law of 20 December 2019 (Memorial A No. 882 of 2019) and its implementing regulation of the same date (Memorial A No. 883 of 2019).

[2] The majority of the criteria apply to “housing”, “rooms” and “communal areas”. The author considers that, based on the definitions given by law and regulations, these parts generally constitute private areas in a co-ownership.

[3] In our view, the property manager could only be held liable if he failed to fulfil his obligation to provide information and advice, an issue which the author will return to in another article.