What are the key laws governing residential leases in your country which are different from non-residential leases?
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Lease Act 27,551 amends the Civil and Commercial Code, but the main regulatory body for residential and non-residential lease is still the Civil and Commercial Code.
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Historically, the rules for residential leases were contained in the Federal Residential Lease Act. Since the sixth state reform (dated 11 October 2011), the subject matter of residential lease law has been regionalised. Consequently, the three Regions (ie Flemish Region, Walloon Region and Brussels Region) have adopted their own rules on residential leases. As a result, there are now three different regimes regulating residential leases in Belgium.
For each of the three different regimes, the rules are mandatory, meaning that parties cannot contractually deviate from the legal provisions.
The Flemish Residential Housing Code of 9 November 2018 (Decreet houdende bepalingen betreffende de huur van voor bewoning bestemde goederen of delen ervan/Décret contenant des dispositions relatives à la location de biens destinés à l'habitation ou de parties de ceux-ci) (published in the Belgian Official State Gazette on 7 December 2018) entered into force on 1 January 2019.
It applies to residential leases concluded after 1 January 2019. The Federal Residential Lease Act continues to apply in full to residential leases concluded before 1 January 2019.
The Walloon Residential Housing Code of 15 March 2018 (het Decreet betreffende de woninghuurovereenkomst/Décret relatif au bail d'habitation) entered into force on 1 September 2018.
It applies immediately to both existing residential leases and to residential leases which are concluded after its entry into force date on 1 September 2018. However, it does not apply to provisions regulating the following subjects: the minimum content of the written agreement, the fire insurance scheme, the possibility of cancelling short-term rentals and the rules on co-tenancy and student accommodation. For these provisions, the Federal Residential Lease Act continues to apply in full to residential leases concluded before 1 September 2018.
The Brussels Residential Housing Code of 27 July 2017 (de Ordonnantie houdende de regionalisering van woninghuurovereenkomst/Ordonnance visant la régionalisation du bail d'habitation) entered into force on 1 January 2018. It has been integrated into the pre-existing Brussels Housing Code of 17 July 2003.
Most of its provisions are only applicable on residential lease contracts which are concluded after the entry into force date, however, some of its provisions are already applicable on ongoing residential lease contracts.
A rental of the privately owned apartments is governed by the Act on Obligations (contracts and torts). In the Federation of Bosnia and Herzegovina, some of the cantons have adopted a separate regulation on renting which impose further requirements/criteria on leases of the state-owned apartments. Lease of the state-owned apartments is subject to additional requirements established by the municipal self-governing bodies.
In Brazil, non-residential and residential leases, as well as temporary (for tourists and students), are governed by the Law nº 8,245/91, as amended by Law nº 12,112/2009.
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Law 820 of 2003 contains the urban housing leasing regime. This law was regulated by Decree 3130 of 2003, Decree 51 of 2004, Decree 1789 of 2004 and Decree 1877 of 2004, and some articles have been repealed by Law 1564 of 2012 and Law 1819 of 2016.
For matters not regulated by this regime, recourse may be had to the Civil Code.
The main law governing residential leases in Croatia is the Residential Lease Act of 1996 as amended. This Act deals exclusively with residential leases, whereby the general law governing leases is the Obligations Act of 2004 as amended.
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The key law for residential leases is:
The Danish Lease Act contains provisions regarding the landlord and the tenant and is protective mandatory towards the tenant.
The Danish Housing Act contains public law provisions governing residential leases.
In addition, the Social Housing Act (Almenlejeloven) applies to various type of social housing, including youth residence (Ungdomsboliger), sheltered dwelling (Plejeboliger) and sheltered housing for the elderly (Ældreboliger). The Social Housing Act will not be elaborated on any further, unless specifically mentioned.
Residential leases for main residences are governed by the law n° 89-462 dated 6 July 1989 which intends to improve tenancy relations as amended notably by law n° 2014-366 dated 24 March 2014 (ALUR - Loi pour l'accès au logement et un urbanisme rénové). These laws continue today to form the foundation of tenant and landlord rights and obligations in France.
Lease law is generally governed by sec. 535 et seq. of the German Civil Code (Bürgerliches Gesetzbuch).
The German Civil Code (Bürgerliches Gesetzbuch) provides for special provisions for residential leases (sec. 549 et seq. German Civil Code). The most important requirements for residential leases compared to non-residential leases include increased protection against termination of the lease by the landlord, restrictions on rent increases and regulations on modernisation measures.
All relevant residential lease laws are generally incorporated in the aforementioned sections of the German Civil Code; eg the last important enactment was the enactment to reduce rent increases in tense residential housing market areas as well as for strengthening the allocation of broker fees for the commissioning of residential real estate (as enacted in the German Civil Code) (‘Restriction on Rent Increases under the German Civil Code’). With the 2022 rent index reform, the Rent Index Reform Act (“Mietspiegelreformgesetz”) was enacted, under which stricter requirements will apply to cities with a population of 50,000 or more for the preparation of rent indexes.
Further important regulations which relate to residential leases:
Apart from these legally standardized deviations, it is possible to make deviating provisions in the contract. Especially in residential leases, the tenant enjoys more protection than in non-residential leases when it comes to judicial interpretation. The courts may control the terms of a lease under the general provisions of the law dealing with standard terms and may declare certain onerous contractual terms void.
In Hong Kong, matters relating to the rights and obligations of landlords and tenants are mainly governed by the Landlord and Tenant (Consolidation) Ordinance (Cap. 7), and residential leases are covered in Part IV and IVA of the ordinance. In particular, Part IVA has taken effect more recently on 22 January 2022 and specifically deals with matters concerning subdivided units in Hong Kong (i.e. by subdividing a flat as shown on the original approved plan of a building into two or more individual units).
As a general note, residential leases in Hong Kong are also governed by the following regulations (which are also applicable to non-residential leases):
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Generally speaking, in Italy the legal provisions applicable to lease agreements are set forth in the Italian Civil Code (sections 1571 through 1614), which define some basic rights and obligations of the parties to a property lease. Almost all the provisions included in the Italian Civil Code may be departed from in each single property lease agreement, with a few exceptions (eg the maximum duration of a property lease, which cannot exceed 30 years).
However, the majority of the relevant provisions applicable to property lease agreements are included in dedicated laws, namely Law no. 431 of 9 December 1998, as from time to time amended, applicable to residential lease agreements (the ‘Residential Tenancy Law’) and Law no. 392 of 27 July 1978, as from time to time amended (the ‘Commercial Tenancy Law’) for commercial ones (to be intended as non-residential lease agreements).
Since the Commercial Tenancy Law was initially introduced to set out the legal framework for both residential and commercial leases, it includes some provisions regarding residential leases too, such as sections 2, 4, 6, 9 and 11, regarding respectively the sublease, the tenant's withdrawal right, the ancillary services and the tenant's cash deposit (as they still apply to residential leases).
Both the Residential Tenancy Law and the Commercial Tenancy Law set forth certain mandatory provisions that may not be departed from in favour of the landlord. Any departure therefrom, if and when challenged by the tenant, might be deemed null and void and automatically replaced by the mandatory provision of the same law. The rationale of the abovementioned laws is to protect the tenant, it being the latter deemed – wrongly or with good reason – as the weaker party in the contractual relationship. It can be affirmed that in Italy residential leases are a highly regulated sector and that, therefore, the contract templates shall be compliant with the law's rules.
The basic rules for leasing are the same for residential leases and non-residential leases. There are several laws and regulations that affect residential properties (and non-residential properties) for rent. Below is a non-exhaustive list of major statutes with explanations:
1. Book 7, Title 4, Section 5 (Articles 7:232 to 7:282) of the Dutch Civil Code (DCC). This lays down tenancy law for the renting of residential property and is primarily mandatory law. The rules apply alongside general tenancy law rules (Articles 7:201–7:231 DCC) and the general law of obligations embodied in the DCC.
2. The Housing Rents (Implementation) Act (Uitvoeringswet huurprijzen woonruimte – Uhw). This Act elaborates on the mandatory rent protection rules for residential property as referred to in Articles 7:246–7:265 DCC. This act also provides for the existence and the tasks and powers of the so-called rent assessment committee (huurcommissie).
3. Other relevant regulations providing for rent protection are:
4. The Housing Act 2014 (Huisvestingswet 2014) aims to ensure a balanced and equitable distribution of housing space. The Housing Act 2014 acts as a toolbox of instruments that the government can use to ensure that everyone has a fairer chance of getting affordable housing. Municipalities make their own municipal housing ordinances (Huisvestingsverordeningen) based on the Housing Act. These contain the new local regulations. These may include:
5. The municipalities may have their own housing ordinances (Huisvestingsverordeningen) laying down further rules about the allocation of the housing stock, such as permits for social housing and mid-market housing and permits for the conversion of self-contained accommodation into shared housing (such as individual room lettings). For example, the municipalities of Amsterdam and The Hague do have such housing regulations.
6. The Act on the Limitation of Rent Increases for Non-regulated Leases (Wet maximering huurprijsverhogingen geliberaliseerde huurovereenkomsten). Under this Act, the allowed rent increase for private leased properties is 5.5% as from 1 January 2024 until 1 May 2024. The Act expires on 1 May 2024. It is expected that an extension of the Act after 1 May 2024 will be adopted, applying another cap on increase of rents for private leased properties.
7. According to the Rent Allowances Act (Wet op de huurtoeslag) a tenant with low income can apply for housing allowance concerning the rent of social housing. If all tenants are below 23 years of age, the maximum rent is EUR 454.47 in 2024. Tenants who want to apply for rent allowance cannot have capital above EUR 36.952 in 2024. The maximum income to be eligible for rent allowance is dependent on the rent, age of the tenant and the household composition (eg children or not).
8. The Good Landlordship Act (Wet goed verhuurderschap). This act enables municipalities to combat undesirable behaviour by landlords, such as housing discrimination, harassment, unreasonable service charges and excessive security deposits. With a rental permit, additional requirements can be imposed on landlords, such as fair rent and timely maintenance of housing. There are also specific rules in the law that improve housing for migrant workers.
9. The Tenants and Landlords (Consultation) Act (Wet op het overleg huurders verhuurder – Wohv), which improves the position and the rights of tenants and tenant organizations by giving them the right to obtain information and the right to be consulted and give advice on aspects such as renovations, living conditions, amalgamations and restructurings in the neighbourhood. The Act applies to an owner of at least 25 residential units destined for the rental market in the Netherlands (or those who are authorized to act on behalf of that owner).
10. The Vacancy Act (Leegstandwet) contains provisions on the renting and letting of vacant residential property (in buildings). Owners may, with a license from the municipality, let their vacant residential property temporarily, to which a significant part of the statutory security of tenure does not apply.
11. The Affordable Rent Act (Wet betaalbare huur) (envisaged to enter into effect on 1 July 2024). The government wants to make middle rent affordable again with the Affordable Rent Act. The law ensures that landlords charge a rent that suits the quality of the property. The Act shall regulate that the modernised housing assessment system (WWS) will apply to medium-sized rental houses up to 186 points, with a rent between EUR 879.66 and 1,123.13 (price level 1 January 2024) per month. Tenants will also get better rent protection with the law. Currently, they have to enforce a maximum rent themselves with their landlord, but not all tenants are able to do so. Municipalities will soon be able to intervene if landlords charge too much rent. This law will eventually reduce the rent of 300,000 homes by an average of EUR190.
12. There is a new proposal on Housing Policy Management (Wetsvoorstel versterking regie volkshuisvesting), which aims to empower local, provincial, and national governments to effectively control the housing market. It targets the construction of 981,000 new homes by 2030, with a focus on affordability, addressing the current housing shortage. Governments will be able to set directives on housing quantities, target groups, and locations, potentially overriding local disagreements to expedite construction. The initiative also involves housing corporations in building 300,000 affordable rental units. Municipalities with a small social housing stock, below the national average, will be required to build more social housing. They must include 30% social rental homes in their new housing programs. Municipalities that already have a large social housing stock, above the national average, will focus more on building for middle incomes. They will fulfil their new housing tasks with more than 40% affordable purchase and mid-rent homes. The legislation seeks to streamline legal procedures to speed up housing projects and mandates a more equitable distribution of social housing across regions, aimed at ensuring access to housing for middle and lower income groups.
13. The Environment & Planning Act entered into force on the 1st of January 2024. It stipulates municipalities ought to set an environmental plan to designate functions to specific locations, and influence the composition of the housing stock, eg by including the categories of social rented housing and mid-market rented housing. Furthermore if offers the basis for permits related to the use of a property as well as construction thereof as well as fire safety, energy-saving measures, the obligation to have an energy-label and other activity related permissions (through force of the national Decrees belonging to the Environment & Planning Act).
14. The Heating Supply Act (Warmtewet), the aim of which is to protect homes that receive their heat (up to a maximum of 100 kW) from district or block heating, or via collective heat and cold storage at excessively high tariffs. On the grounds of the Heating Supply Act, a landlord (the supplier) was required to conclude a written heating supply agreement with the tenant (the consumer) and maximum tariffs applied. The Heating Supply Act has been amended with effect from 1 July 2019 and since then landlords have been exempted from most obligations that apply to owners under the Heating Supply Act. Heating supply agreements already concluded remain valid.
15. The Regulation for the Stimulation of Gas-Free Residential Lease (Stimuleringsregeling aardgasvrije huurwoningen) aims to reduce the number of homes that are dependent on gas and connecting those to district or block heating. It applies specifically to rental homes and rental/privately owned homes that are part of a building or buildings for which an Owners Association (vereniging van eigenaren) has been established of which one or more members are tenants.
At all times the requirements of reasonableness and fairness apply in the legal relationship between the tenant and the landlord.
Residential Tenancies Act 1986 (RTA)
The main legislation governing residential landlord-tenant relationships is the RTA.
The RTA sets out the parties’ respective rights and obligations, and provides legal protection for both. The landlord’s main responsibilities include maintaining the property, meeting healthy homes regulations, and giving the tenants quiet enjoyment of the property. The tenant’s key responsibilities are to keep the property clean and tidy, pay rent on time, inform the landlord of any repairs needed, and follow the other terms of the tenancy agreement.
To meet their obligations under the RTA and the regulations, landlords also need to be aware of the broader health and safety related requirements of other ancillary laws such as:
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The Tenancy Act 1999 is the primary statute governing both residential and non-residential leases in Norway. In relation to residential leases, the Tenancy Act is mostly mandatory.
There is also earlier act of 1939 (now repealed) on tenancies, which still regulates fixed-termed contracts which were entered into before the current Tenancy Act came into force.
In cases of eviction from the leased premises, the Enforcement Act 1992 governs the process (especially Chapter 13).
In the case of dispute between the parties, the Rent Disputes Tribunal mediates and decides matters at first instance in all geographical parts of Norway. This process is governed in separate regulations for the rent disputes tribunal mainly (Forskrift om Husleietvistutvalget).
In Polish law, there are several dozens of acts regarding leases, though few relating to residential leases only. Some key acts are:
Regulation of the Minister of Infrastructure of 12 April 2002 on the technical conditions to be met for buildings and their locations (Polish: Rozporządzenie Ministra Infrastruktury z dnia 12 kwietnia 2002 r. w sprawie warunków technicznych, jakim powinny odpowiadać budynki i ich usytuowanie). The Regulation lays down the technical conditions for buildings and related installations, their location on a building plot and the development of plots designated for the construction of buildings.
Act of 20 July 2018 on the Transformation of the of Perpetual Usufruct Right to the Land Developed for Housing Purposes into the Ownership Right to This Land (Polish: Ustawa z dnia 20 lipca 2018 r. o przekształceniu prawa użytkowania wieczystego gruntów zabudowanych na cele mieszkaniowe w prawo własności tych gruntów).
The Act applies only to the land on which the buildings intended for housing purposes stand. The Act provides for the statutory transformation of the perpetual usufruct right into the ownership of land for owners of single-family houses and of independent premises located in multi-family buildings with commercial buildings, garages and other construction objects; and construction equipment that enable proper and rational use of residential buildings. Landowners are obliged to pay for the acquisition of property rights in the form of an annual payment for 20 years. The amount of the annual fee for the conversion will correspond to the annual fee for perpetual usufruct, valid on the day of transformation. A number of payment reductions may apply.
Regulation of the Minister of Infrastructure and Development of 27 February 2015 on the methodology of determining the energy performance of a building or part of a building and energy performance certificates (Polish: Rozporządzenie Ministra Infrastruktury i Rozwoju z dnia 27 lutego 2015 r. w sprawie metodologii wyznaczania charakterystyki energetycznej budynku lub części budynku oraz świadectw charakterystyki energetycznej).
The regulation specifies for a building or part of a building:
Act of 26 October 1995 on Social Forms of Housing Development (Polish: Ustawa z dnia 26 października 1995 r. o społecznych formach rozwoju mieszkalnictwa) – rules for collecting savings and financing by Bank Gospodarstwa Krajowego of some investment and construction projects aimed at building residential premises along with the principles of operation of social housing associations.
Act of 20 July 2017 on the National Property Resource (Polish: Ustawa z dnia 20 lipca 2017 r. o Krajowym Zasobie Nieruchomości) – the creation and functioning of the National Property Resource; the rules for qualifying and transferring real estate, including building and housing properties, to the National Property Resource.
Act of 20 July 2018 on State Aid in Bearing Housing Expenses in the First Years of the Lease of a Flat (Polish: Ustawa z dnia 20 lipca 2018 r. o pomocy państwa w ponoszeniu wydatków mieszkaniowych w pierwszych latach najmu mieszkania) – rules for the use of subsidies covering part of the rent for the lease of a flat.
Regulation of the Minister of Internal Affairs and Administration of 8 July 2004 on the terms of lease of residential premises managed by organizational units of the Police (Polish: Rozporządzenie Ministra Spraw Wewnętrznych i Administracji z dnia 8 lipca 2004 r. w sprawie warunków najmu lokali mieszkalnych pozostających w zarządzie jednostek organizacyjnych Policji) – specifies the terms of lease of residential premises located in buildings owned by the State Treasury and managed by the Police units.
Act of 8 December 2006 on Financial Support for the Certain Housing Projects (Polish: Ustawa z dnia 8 grudnia 2006 r. o finansowym wsparciu niektórych przedsięwzięć mieszkaniowych) – concerns the provision of:
- financial support out of the Subsidy Fund, including for the purpose of creating:
- creating, supplementing, and sharing a database of architectural and construction projects and technical designs for the construction of buildings with residential units, as well as managing this database;
- and of managing residential premises for lease, created using financial support where such premises do not form part of a commune's housing resource.
Act of 21 June 2001 on Housing Allowances (Polish: Ustawa z dnia 21 czerwca 2001 r. o dodatkach mieszkaniowych) – lays down the rules and procedure for awarding and determining the amount and payment of housing allowances, and the competence of the authorities in these matters.
Act of 21 June 2001 on protection of tenants’ rights, the housing stock of the municipality and on amending the Civil Code (Polish: Ustawa z dnia 21 czerwca 2001 r. o ochronie praw lokatorów, mieszkaniowym zasobie gminy i o zmianie Kodeksu cywilnego) (Tenants' Rights Protection Act) – specifies the rights and obligations of tenants and landlords, describes the rules of the occasional lease and institutional lease and the principles of the housing stock of the municipality.
Residential leases and non-residential leases are regulated by the same Codes: The Civil Law Code (in a more general way) and the Urban Lease Law (specifically).
Within these laws there are subdivisions regarding each matter: residential and non-residential leases.
In general, on non-residential leases parties have more contractual freedom than in residential leases, since the law privileges residential tenants in the matter of residential leases (although this dualism of regulation has been mitigated in light of the recent legislative amendments to the Civil Law Code, implemented to restrict parties’ contractual freedom to stipulate the contractual terms of non-residential leases, namely regarding the landlord’s possibility of early termination)
Law no. 287/2009 (Romanian Civil Code) provides both a general framework for leases in Romania and a specific framework for residential leases. Articles 1824 to 1835 contain special provisions in respect of residential leases, that amend and supplement the general regulations regarding lease agreements.
Moreover, there are several laws that regulate specific aspects of residential leases, such as:
Below is a list of the key laws governing residential leases in the Slovak Republic:
In Spain, residential and commercial lease agreements are both governed by the Spanish Urban Lease Act (Ley de Arrendamientos Urbanos). The main difference between both kinds of lease agreements under such Act is how the same shall be regulated. To this effect, residential lease agreements shall be governed mandatorily by specific Spanish Urban Lease Act's provisions; secondarily, by the parties' intent and, lastly, by the Spanish Civil Code. In contrast, commercial lease agreements are governed by the intent of both parties as established in their lease agreement and, just subsidiarily, by the Spanish Urban Lease Act and the Spanish Civil Code. Thus, under commercial lease agreements, the parties' will is what prevails over the law, and in residential leases, it is the law that prevails (mainly, to protect the interests of the tenant).
The Swedish Rental Act (Sw. hyreslagen) of 1970, which is incorporated as chapter 12 of the Swedish Land Code (Sw. jordabalken), regulates both commercial and non-commercial leases. Where statutory provisions are in force, restrictions limit the parties' ability to contract out of them.
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There are over 50 Acts of Parliament and 70 pieces of delegated legislation which affect landlords owning residential property for let. Below is a sample of the main statutes and the areas they cover:
There are various types of residential lease in Scotland, and the key applicable legislation will generally be determined by whether the landlord is a private sector landlord or a landlord (such as a local authority or housing association) operating in the social rented sector.
The main tenancy types in the social rented sector (which is more heavily regulated than the private rented sector) are called ‘Scottish secure tenancies’ and ‘short Scottish secure tenancies’, and are largely governed by the Housing (Scotland) Act 2001, the Housing (Scotland) Act 2010, and the Housing (Scotland) Act 2014.
The key piece of legislation applicable to residential leases in the private sector (the sector on which this commentary focuses) is the Private Housing (Tenancies) (Scotland) Act 2016 (2016 Act). Subject to various exceptions, private sector residential leases entered into in Scotland on or after 1 December 2017 are a new type of tenancy known as the ‘private residential tenancy’ (PRT) and are governed by the provisions of the 2016 Act.
PRTs are indefinite tenancies with no minimum duration and can only be brought to an end by either the tenant or the landlord complying with the 2016 Act's termination procedures (more details below). A model form of PRT agreement containing mandatory and optional clauses has been published by the Scottish Government and is freely available online.
Most private sector residential leases entered into before 1 December 2017 are either ‘assured tenancies’, or, more commonly, ‘short assured tenancies’. These leases are governed by the Housing (Scotland) Act 1988. Although many assured and short assured tenancies continue to be in force to this day, the 2016 Act states that no new assured or short assured tenancies can be entered into on or after 1 December 2017. This means that assured and short assured tenancies are gradually being phased out of existence and, for that reason, this commentary concentrates on PRTs.
A number of other pieces of legislation may be applicable when leasing residential property in Scotland. These include:
The main provisions regulating residential leases in the private sector are set out in chapters 58 and 59 of the Civil Code of Ukraine. At the same time, the Housing Code of Ukraine should apply to the relations of the residential lease, unless it contravenes the provisions of the Civil Code of Ukraine.
There are also some other laws governing residential leases in Ukraine:
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