May you sublet or assign a commercial lease?

Between flexibility and protection: subletting and assignment of a commercial lease explained

Running a business under a commercial lease does not always go according to plan. Your activity may grow faster than expected, or you may start considering stopping or transferring the lease during its term. Or you may be a landlord who wants to retain long-term control over who occupies your property.
In such situations, the same questions quickly arise: may a tenant sublet? Can a commercial lease be assigned? And how much room for manoeuvre does the law actually allow? Lawyers Stefanie Claeys, Marlies Janssens and Dorien Avaux clearly outline the legal framework.

Subletting under a commercial lease: permitted in principle

Under a commercial lease, subletting is in principle permitted. The tenant may sublet all or part of the premises to a third party without prior consent from the landlord. The original tenant remains the principal tenant and continues to bear full responsibility for all obligations arising from the lease agreement.

This arrangement offers flexibility to the tenant, for example in the case of a temporary reorganisation or shared use of the premises. At the same time, the landlord retains the original contracting party as their point of contact.

Subletting and assignment do not follow the same logic: while subletting under a commercial lease is often possible, assignment requires consent.

Assignment of a commercial lease: consent required

An assignment of a commercial lease goes a step further. A new tenant replaces the original tenant. Because this entails a new contracting party for the landlord, the landlord’s consent is required.

Even after the assignment, the original tenant remains, in principle, jointly and severally liable for the obligations arising from the original commercial lease, unless the landlord expressly releases them from this liability.

Contractual prohibition of subletting or assignment: possible, but not absolute

The parties may contractually exclude subletting or assignment in the commercial lease agreement. Such a prohibition is in principle valid and is often used to retain control over the use of the premises.

However, this freedom has an important limitation. Where the tenant transfers their business or sublets it, they may transfer the lease together with that business or sublet the leased property together with it, provided that they notify the landlord of the agreement of transfer or subletting. In that case, the landlord has thirty days to object to the assignment or subletting, and may do so only in a limited number of cases defined by law. If the landlord does not object, the tenant may proceed with the assignment of the lease or the subletting of the premises. This right is mandatory and cannot be contractually excluded.

There is only one exception: where the landlord or a member of their family occupies part of the premises themselves. In that case, the contractual prohibition may remain valid.

Short-term commercial leases: no room for assignment or subletting

Have you entered into a temporary commercial lease, for example for a pop-up store? In that case, subletting and assignment of the lease are not permitted. The legislator has deliberately opted for simplicity and legal certainty here, in line with the temporary nature of such agreements.

A tailor-made commercial lease, with NOMA as your sounding board

Subletting and assignment are not minor details, but decisive choices within a commercial lease. A carefully structured contract ensures clear and workable arrangements, tailored to the property and to the future of the business.

Are you a tenant or landlord with questions about commercial leases? NOMA is happy to think along with you. Our lawyers advise you professionally and personally, always adapted to your unique situation. Get in touch.

On 5 March, NOMA will also be hosting a live seminar on commercial leases in Bruges. Leave your details here and we will be happy to keep you informed.