Belgian supreme court rules in favour of tenant over hotel in COVID-19 case

On 13 September 2024, the Belgian Supreme Court ruled that a tenant of a hotel building is entitled to a rent reduction for the loss of enjoyment resulting from government measures to combat the COVID-19 pandemic. The Supreme Court applied the force majeure doctrine (Article 1722 of the old Civil Code), even though physical access to hotels was never prohibited by the government.

An appeals judge ruled that COVID-19 measures constituted force majeure, preventing the landlord during the period of restrictions to comply with its obligation to provide the tenant with peaceful enjoyment of the hotel. For that period, the court decided that the tenant is entitled to a rent reduction proportional to the loss of enjoyment.

The landlord appealed this decision to the Supreme Court. According to the landlord, there was no lack of enjoyment because public access to the hotel was still allowed. Although the hotel sector was significantly affected by the pandemic, hotel operations were not prohibited by government measures. The landlord argued that the appeal judge could not legally conclude that the landlord was unable to provide peaceful enjoyment due to force majeure.

The Supreme Court rejected the landlord’s argument and upheld the decision of the appeals judge. This was the first time the Supreme Court rules whether COVID-19 measures can be considered force majeure for the hotel sector.

In previous case-law, the Supreme Court confirmed that Article 1722 of the old Civil Code applies to the mandatory closure of the retail sector (i.e. the lockdown of non-essential businesses). The Court now rules that the application of the “risk theory” does not require that public access to commercial space be made impossible due to governmental measures.

For more information on rulings in Belgium concerning force majeure and the COVID-19 pandemic, contact your CMS client partner or these CMS experts.