Damp, mould and other defects: your rights as a tenant in Belgium

Mould in the bedroom, rainwater seeping through the roof, a boiler that breaks down in the middle of January: damp and mould in a rented home, along with other defects, are among the most common causes of disputes between tenants and landlords. Yet the law sets a clear standard: the landlord must provide and maintain a home that meets basic quality standards. This article explains who has to repair what, which steps you can take as a tenant in Brussels and in Flanders, and which mistakes you should avoid.

The landlord’s basic obligation

In both regions, the rented home must meet basic quality requirements. In Brussels, these are the safety, health and equipment requirements of the Brussels Housing Code (Brusselse Huisvestingscode / Code bruxellois du Logement): among other things, the stability of the building, electricity, gas, heating, damp, lighting and ventilation, as well as the supply of water and sanitary facilities. In Flanders, the Flemish Residential Tenancy Decree (Vlaams Woninghuurdecreet) refers to the basic safety, health and housing quality requirements of the Flemish Housing Code (Vlaamse Codex Wonen).

The landlord must also maintain the home throughout the tenancy so that it can be used for the purpose for which it was let. Defects that only appear during the tenancy are therefore also the landlord’s responsibility, unless they concern repairs that the law assigns to the tenant.

Who repairs what?

The tenant is responsible for minor repairs and routine maintenance: for example, the annual servicing of the boiler, descaling appliances, sweeping the chimney, replacing light bulbs and looking after the garden. The tenant also bears the repairs made necessary by their own fault or by failing to report a defect in time.

The landlord is responsible for all other repairs, and certainly those caused by age, force majeure or a construction defect: a leaking roof, damp penetrating from outside, a faulty boiler that needs replacing, pipes or the electrical installation. In Brussels, a non-exhaustive list adopted by the government sets out which repairs are mandatorily borne by the tenant or by the landlord; the parties cannot depart from it. In Flanders, too, the Flemish Government has adopted a list of repairs that are in any event regarded as minor repairs; the parties may, however, limit or exclude the tenant’s repair obligation (Article 26 of the Flemish Residential Tenancy Decree).

Damp and mould in a rented home: who is responsible?

With damp and mould, the cause is decisive. Mould caused by structural damp, such as rising damp, rainwater penetration or a leaking pipe, is the landlord’s responsibility. Mould that develops because the home is not sufficiently ventilated or heated may be attributed to the tenant.

Often both causes play a role, for example when condensation forms on a poorly insulated wall. An expert then has to distinguish between them, including by taking moisture readings at different places and at different times. The report of an inspection or of a court expert appointed by the justice of the peace (vrederechter / juge de paix) carries great weight in such a dispute.

What can you do yourself? Air the home daily, heat all rooms sufficiently, keep the ventilation grilles open and do not dry laundry indoors without ventilation. Also take dated photos of the damage and note the indoor temperature: this shows that you are using the home normally.

What steps can you take as a tenant?

1. Report the defect in writing

Send the landlord a registered letter or an email with photos, a clear description and a reasonable deadline to resolve the problem. This notification also proves that the landlord was aware of the issue. If there is no response, the next step is a formal notice of default (ingebrekestelling / mise en demeure).

Then give the landlord or their contractor access to inspect and repair the defect. Keep a copy of all messages, photos and invoices.

2. Call in the housing inspectorate

In Brussels, you can file a complaint with the Regional Housing Inspectorate (Directie Gewestelijke Huisvestingsinspectie / Direction de l’Inspection régionale du Logement). It checks on site whether the home meets the basic requirements, and its report is objective, technical evidence of the condition of the property. It can order the landlord to carry out works and can even prohibit the property from being let. A notice to quit served by the landlord after the complaint has been filed is also suspended until the Inspectorate’s decision (Article 7 of the Brussels Housing Code).

In Flanders, you can contact the municipality, which can have a conformity inspection of the home carried out. In the event of serious defects, the mayor can declare the home unfit or uninhabitable (ongeschikt / onbewoonbaar), with far-reaching consequences for the landlord.

3. Go to the justice of the peace

If no solution is found, the justice of the peace for the area where the property is located has jurisdiction. An attempt at conciliation before the justice of the peace can sometimes avoid lengthier proceedings. If that fails, you can ask the court to:

• order the landlord to carry out the repairs, if necessary subject to a penalty payment (dwangsom / astreinte);
• grant a rent reduction for the period during which your enjoyment of the home was reduced;
• in serious cases, dissolve the lease, with damages.

In Flanders, a lease for a home that does not meet the basic requirements when the lease is concluded is null and void. The court establishes this nullity and can impose an occupation indemnity (bezettingsvergoeding / indemnité d’occupation) that takes the defects into account (Article 12(2) of the Flemish Residential Tenancy Decree).

If the lease is dissolved through the landlord’s fault, the damages may also cover the costs you incur to move elsewhere, such as removal and set-up costs. In Brussels, the court can in that case expressly order the landlord to bear the rehousing costs: vacating the home, transporting the furniture, setting up in the new home and the difference between the old and the new rent, up to the amount of a non-excessive rent, for a maximum of eighteen months (Article 219(6) of the Brussels Housing Code). Keep all supporting documents for these costs.

Repairs during the tenancy

The tenant must tolerate urgent repairs that cannot wait until the end of the tenancy, even if they cause inconvenience. If the works last longer than the period laid down by tenancy legislation (in Flanders, thirty days, Article 27 of the Flemish Residential Tenancy Decree), the tenant is entitled to a proportionate rent reduction for the time and the part of the home of which they are deprived. If the works make the home uninhabitable, the tenant can ask for the lease to be dissolved. Agree on the timing and on access to the home in advance.

Do not simply withhold rent

It is tempting to stop paying rent as long as the landlord does nothing. That is risky: the landlord can then accuse you of a breach in turn and claim the dissolution of the lease and your eviction.

The right to suspend your own obligation, known as the exception of non-performance (exceptie van niet-uitvoering / exception d’inexécution), does exist, but only in the event of a serious breach and in proportion to that breach. If the court later takes a different view, you bear the risk. Never do this without legal advice, and ask the court for a rent reduction instead.

Frequently asked questions

Can I have repairs carried out myself and pass on the invoice?

That is risky without the landlord’s agreement or the court’s authorisation, except in urgent cases and after a formal notice of default. Otherwise, you run the risk of bearing the costs yourself.

Can the landlord end my lease because I complain?

Complaining is not in itself a legal ground for termination. The landlord can only give notice on the grounds provided by law, observing the statutory notice periods and paying any compensation due. In Brussels, a notice to quit served by the landlord after a complaint to the inspectorate is also suspended until the inspectorate’s decision.

Can I recover rent I have overpaid?

If the court grants a rent reduction, it can apply to the period during which your enjoyment of the home was reduced, as a rule from the moment the landlord was informed. Keep every notification for that reason.

Who pays the expert who investigates the cause of the damp?

If the justice of the peace appoints a court expert, the court decides who pays the advance. At the end of the proceedings, the losing party in principle bears the costs of the expert investigation. An expert you call in yourself is at your own expense, but their report can serve as evidence.

Can I leave if the home becomes uninhabitable?

You can terminate the lease under the ordinary rules, with the statutory notice period and, where applicable, compensation. If the defects make the home uninhabitable, you can also ask the court to dissolve the lease on the grounds of the landlord’s breach, with damages. Read more about giving notice as a tenant.

Novex Advocaten can help

We represent tenants living in homes with defects, as well as landlords who are wrongly held responsible. Also read our articles on proceedings before the justice of the peace and on the check-in inventory (plaatsbeschrijving / état des lieux) and rental damage, as well as our overview of the rights and obligations of tenants and landlords. We can assist you in English, Dutch, French and Arabic.

Call 0484 99 22 72 or email asfour@novexadvocaten.be.