The new law and its implementing regulations relating to health, hygiene, safety and suitability conditions for rented accommodation[1] now apply to all accommodation let or made available for residential purposes.

The two-year transition period for dwellings currently being rented expired on 23 December 2021.

In a recent article, we explained that certain criteria apply to common areas within a co-ownership, which is likely to lead to numerous disputes between co-owners.

The new provisions impose criminal penalties on any co-owner who rents or makes available premises that do not comply with the new standards.

However, work to bring common areas into compliance often requires the approval of the general meeting of co-owners, which is often not straightforward.

In this article, we will examine the property manager’s responsibility in light of these new provisions.

1. Criteria applicable to common areas

The author points out 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.

Indeed, certain criteria apply to parts of the building, which often constitute 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.

2. Are property managers exempt from the law?

It should be noted that the law makes a violation of the new standards a criminal offence and punishes offenders with a fine of €251 to €125,000 and imprisonment of 8 days to 5 years, or one of these penalties alone.

In the event of non-compliance with the new criteria, the law holds the owner and/or the “operator” liable.

It seems clear that when the owner rents out their property directly, they are liable as the owner.

But what does the law mean by the term “operator”? The law defines this as the manager of the property or room that is rented out or made available.

Does this definition also include the property manager?

The law applies to the operator of the accommodation or room, not the building. Furthermore, the law applies to any owner or operator “who wishes to rent or make available” the premises.

A person who simply acts as a property manager should not be covered by this term, according to the author.

This also seems to be implied by the bill, which specifies that it applies in particular to “operators of a café, brasserie or restaurant who, for example, run a bar and/or food service located in the building”, i.e. professions unrelated to those of a property manager.

However, the author believes that even if the property manager does not appear to be directly targeted by the law, they may still be liable to one or more co-owners.

3. The property manager’s liability

If the property manager is not directly covered by the law, the author believes that it is strongly recommended that they convene a general meeting to decide on the work, with explicit reference to the new provisions.

On the one hand, the property manager has a duty to advise and inform.

On the other hand, they have an obligation to ensure the conservation, custody and maintenance of the building.

With regard to the latter obligation, the principle is that the property manager must obtain the authorisation of the general meeting for any decisions relating thereto (Article 14(1) of the Act of 16 May 1975).

According to the author, bringing the common areas into compliance should, in most cases, constitute conversion work, thus requiring either an absolute majority or a three-quarters majority of votes… which may be difficult to obtain!

The author considers that this is not in an exceptional case of urgency, as it is not a matter of safeguarding the building and there is no urgency insofar as the law was passed in 2019.

As the two-year transition period expired on 23 December 2021 in accordance with Article 23 of the implementing regulation, the general meeting – if it has not yet taken place – must be convened as soon as possible.

[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 the law and the regulations, these parts generally constitute private areas in a co-ownership.