Are you managing transitional real estate? Looking for a flexible alternative to traditional leases? Wondering about the legal validity of certain temporary occupation agreements?
The bill of February 20, 2025—expected to come into effect between September 2025 and January 2026—could revolutionize your approach to temporary property use.
Long relegated to the vague category of “unnamed contracts,” precarious occupation will finally gain legal recognition. This codification brings much-needed clarity but also raises new tax and practical questions.
Let’s explore the stakes and key practical implications of this legal development.
Legal Recognition of Precarious Occupation
Article 7.3.1, paragraph 2 of the upcoming Book 7 of the Civil Code provides:
“It is not considered a lease when a party agrees to provide another with the precarious use and enjoyment of a property for a price, provided that this precarious nature is justified by legitimate reasons.”
This provision ends a long period of legal uncertainty. Precarious occupation will no longer be an unnamed contract subject to judicial interpretation, but rather a fully recognized legal concept, distinct from a lease.
Legitimate Reasons: The Essential Condition for This Distinct Regime
Case law and legal doctrine have gradually defined “legitimate reasons,” with examples such as:
- transitional periods between two leases,
- awaiting renovation works,
- searching for a new commercial location,
- stock clearance before relocation,
- interim occupation between signing and closing of a sale,
- testing business viability.
In general, legitimate reasons refer to any objectively temporary occupation, usually aimed at resolving a short-term situation.
Despite the codification, courts are expected to remain vigilant against attempts to sidestep tenant protections. Precarious occupation must not be used to circumvent leaseholder rights.
What About Safety and Health Regulations?
Article 4 of the Brussels Housing Code imposes strict safety, health, and equipment standards.
However, Article 5, paragraph 2 introduces a key exception: These obligations do not apply to tourist accommodations (per the Ordinance of May 8, 2014), temporary occupations for social purposes, and particularly agreements between buyer and seller during the transfer of a property.
This last exception is especially relevant for real estate deals where, for example, the seller needs time to find a new home.
In Wallonia and Flanders, no such exceptions exist specifically for precarious occupation. Therefore, these agreements must generally comply with health standards unless their temporary and exceptional nature can be clearly demonstrated.
How Are Precarious Occupation Incomes Taxed?
For Personal Income Tax (IPP)
Are revenues from precarious occupation considered “real estate income” under Article 7, §1, 2° of the Income Tax Code?
No. That provision refers specifically to leases as defined by the Civil Code. The Brussels Court of Appeal confirmed this in its ruling of June 6, 2024 (2017/AF/118).
As a result, Article 7, §1, 1° applies, meaning taxation is based solely on the cadastral income, plus property tax.
This results in a significant tax advantage compared to traditional non-residential leases, as real income is not taxed!
In Terms of VAT
Precarious occupation falls within the scope of VAT but is exempt without the right to deduct.
For Registration Duties
Under the old regime, there was uncertainty about the 0.2% proportional duty.
Now, a precarious occupation agreement is subject only to a fixed duty of €50, which can represent substantial savings for high-value properties.
How to Draft a Precarious Occupation Agreement
The agreement must be carefully drafted to avoid reclassification as a traditional lease.
Start with a clear qualification clause, e.g.:
“The parties expressly agree that this contract constitutes a precarious occupation under Article 7.3.1, paragraph 2 of the Civil Code, and not a lease.”
Next, detail the legitimate reasons justifying the temporary nature of the occupation—such as upcoming works, a planned project, or transitional use. The duration must align with these reasons; an overly long or renewable period may risk requalification as a lease.
The contract should also define notice and termination terms (reasonable notice as per Article 5.75 of the Civil Code), early termination grounds, and exit inventory. Specify each party’s responsibilities: maintenance, costs, taxes, insurance, and compliance with safety rules.
Avoid common mistakes like the absence of serious justification for precariousness, automatic renewal clauses, or granting rights equivalent to a tenant’s.
It’s also wise to document the context clearly, limit the duration realistically, conduct a detailed inventory, and inform all parties of the potential tax consequences.
New Opportunities by Professional Profile
For Property Owners
This reform provides a tax-efficient solution for transitional periods, greater flexibility in property management, and fewer regulatory burdens. But legitimate reasons must be well documented, repetitive use avoided (risk of reclassification), and the duration matched to the real situation.
For Investors and Developers
Practical uses include temporary occupation during construction, interim use of properties awaiting sale, transitional solutions for existing tenants, and optimized marketing periods.
For Property Managers
This legal development introduces new tools: vacancy management, alternatives to short-term leases, tax optimization for owners, and greater flexibility in negotiations.
Conclusion
This reform in property law may require fast and precise adjustments to your practices. With tax opportunities, new legal risks, and contract evolution, every detail matters in optimizing your operations.
With decades of experience, Vanbelle Law Boutique supports you under this new regime and in all your real estate legal matters: leases, sales, property development, co-ownerships, urban planning, taxation, etc. Anticipating legal changes means avoiding disputes and staying ahead of the curve.
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