1/1/2026: Take a look at your autonomous lease guarantees with the entry into force of Title1 of Boo

As of 1 January 2026, Title 1 “Personal securities” of Book IX “Securities” of the new Belgian Civil Code has entered into force and does apply to all new personal securities being vested (even in relation to a principal agreement which is already in place before such date). This is important for any autonomous guarantee issued as of 1 January 2026 within the framework of a lease agreement (or any other agreement).

Introduction

Even if these new rules are mainly supplementary law (except for definitions or in case of consumers involved), it is important, as of now, to review the models of the autonomous (bank) guarantees in the light thereof.

Hereinafter we briefly describe some general rules applicable to all personal securities, and will then focus on the “autonomous” personal securities or autonomous guarantees which are mostly used to guarantee the obligations of a tenant under a lease agreement. We will not enter into the details of when such autonomous guarantee is vested by a consumer (chapter 4 of Title 1), where additional legal protection is offered to such guarantor. You will see hereinafter that some attention will need to be paid to the drafting of the guarantee requirements in the principal agreement as well as to the wording of the security document itself.

General rules on personal securities or guarantees

First of all, a personal guarantee is not presumed. The will to vest a personal guarantee needs to be clear and it cannot go beyond the borders within which the guarantee is vested. Also the new law provides explicitly that in case of doubt with respect of the extent of the personal guarantee, the personal guarantee is to be explained to the benefit of the guarantor.

The debtor, in our case the tenant, is to provide the landlord a guarantor that is able to enter into a guarantee and that is sufficiently solvent to honour its engagements. If the guarantor later becomes insolvent, the tenant is to offer another personal security to the landlord, unless in the lease agreement the landlord demanded the autonomous (bank) guarantee from a specific party. Hence, in order not to have the application of the exception to the replacement of the guarantee, the wording in the lease agreement needs to remain to some extent vague as to the identity of the guarantor. Otherwise, if the lease agreement clearly stipulates that the guarantee is to be issued by “Bank XYZ” and subsequently Bank XYZ becomes insolvent, the obligation for the tenant to replace the guarantee does not come into play (except if contractually parties clearly deviated from the supplementary law).

Every personal security, i.e. the obligation of a third party to a creditor to guarantee the payment of an undertaking of the main debtor towards the creditor, is presumed to be an accessory personal security or caution surety (“borgtocht/caution”), unless the creditor demonstrates that parties agreed otherwise. The accessory personal securities have another set of rules apply to them (e.g. the requirement of sending a prior notice of default to the main debtor, before addressing the guarantor). So it is of outmost importance to have clear language in both the principal agreement and the security document that parties want to vest an “autonomous personal security” (“autonome persoonlijke zekerheid/sûreté personnelle autonome”). To be noted that until now, reference was often made to an “abstract” (bank) guarantee in many lease agreements or in the rental (bank) guarantees, but the new legal provisions are referring now to an “autonomous” undertaking…so a change of wording is advisable in order to avoid discussions later on.

The autonomous personal securities or guarantees

Zooming in on the autonomous personal securities. The law defines the “autonomous personal security” or “autonomous guarantee” as the personal security that in accordance with its terms is not (versus the ancillary personal security) dependent of the validity, terms and conditions, the extent and the existence of the principal/main agreement. The autonomous nature of a security is not endangered by a mere general reference to the guaranteed obligation.

In relation to lease agreements, the majority of the autonomous personal securities are vested by a bank or a financial institution (if a consumer issues an autonomous personal security specific rules do apply). The issuer of the autonomous personal security is only obliged to pay if the request for payment complies with the rules set out in this respect in the guarantee document. The guarantor is also to inform without delay the principal debtor of the request for payment and the fact whether or not the request complies with the rules. The law does not provide itself for the format of the request and the delays of informing the principal debtor, so hence the importance to be precise in the personal security document itself. On the other hand, the law does expressly stipulate that the guarantor is to comply with the request of the creditor/landlord or to inform the creditor/landlord of its motivated refusal to do so without delay or at least within seven business days. So if the guarantor or tenant would prefer to have a longer verification or reaction period, that will need to be clearly stipulated in the contractual documentation in deviation of the supplementary legal provision. The guarantor is otherwise liable for the damages resulting from non-compliance of the supplementary legal provision (unless otherwise stipulated in the contractual documentation between tenant and guarantor). The law does now also clearly provide that the bank/guarantor can reclaim from the landlord/beneficiary any payment under the autonomous guarantee if the request did not comply with the conditions of the autonomous personal security.

The bank/guarantor can refuse to honour a payment request from the landlord if it is “immediately” clear that the request is manifestly abusive or fraudulent. In such a case the tenant can also prohibit the performance of the autonomous guarantee. The law itself does not define what is understood under “immediately” so parties can provide explicit wording.

Parties are also to provide for a clear (end) term of the autonomous guarantee. Any payment request is to reach the bank/guarantor prior to the expiry of the autonomous guarantee. Also if the term is not clear or undetermined, the autonomous guarantee can be terminated via a reasonable notice period. The law leaves it open what is to be understood as a reasonable notice period for an autonomous guarantee, whereas in respect of the ancillary guarantee a notice period of 45 days is provided for, unless parties agree on a shorter notice period.

The law also provides that the autonomous guarantee cannot be transferred to another beneficiary, e.g. in case of sale of the rented premises the purchaser/new landlord does not automatically benefit from such guarantee, unless specific contractual wording is provided for in that respect.

Conclusion

The above shows that some attention is to be paid to the wording of the autonomous personal security or guarantee in order to avoid surprises later on.

If you have any questions regarding your lease or other agreements or your guarantees, please do not hesitate to contact me directly ([email protected]).