Unlawful clauses at VME
Additional protection for Associations of Co-owners (VMEs).
On 8 February 2024, the Act containing Miscellaneous Provisions on Economics was approved at the plenary session of the House of Representatives. The law makes the tortious clauses doctrine from economic law (Book 6 WER) applicable to VMEs. The new law aims to protect VMEs, who are responsible for the management and maintenance of common parts in apartment buildings, from unfair terms in contracts with companies.
Think of maintenance contracts for lifts, boilers, fire extinguishers, etc. or agreements where VMEs remain tied to these contracts for too long in the absence of reasonable notice periods or pursuant to automatic renewals of those contracts. Consider agreements with contractors where the contractor's risk is eroded to too great an extent edm. Agreements with disproportionately high damage clauses are also (too) common.
There are rules in Belgian law that protect consumers, businesses and therefore now VMEs against unfair clauses in a contract with another company. The rules for consumers are stricter, as those for companies, but both therefore enjoy protection. Unfair terms are prohibited and the court can disapply or mitigate them.
Mind you, this is not a unitary cake. Depending on how many of the flats within the VME are intended for professional use or private use, slightly different rules apply. If 75% or more of the flats are not intended for professional use, the consumer rules apply. If 25% or more are intended for professional use, the rules apply to businesses. Whether or not these flats are for professional use will have to be ascertained from the articles of association.
It is important to stress that these new rules also apply to ongoing contracts. Let this be an invitation to scrutinise existing and new contracts.
Any questions? We are happy to help.
