Real Property Law Belgium – Draft Lawfort 29 September 2004 BELGIAN REAL PROPERTY LAW 1. Real Property Law – Introduction 1.1 General Features and Short History In Belgium , the articles related to real property are spread out throughout the Belgian Civil Code (hereafter described as the ‘BCC’), som e special civil law acts (i.e Long Lease Act of 1824), tax law and regulatory and environm ental law. The BCC has been founded on the French Civil Code of Napoleon and was introduced in the year of the Belgian independence of 1831. Save som e m inor m odifications of the BCC in particular with regard to the lease agreem ents, the m ain reform s of real estate law have been laid down in special civil law acts. The m ost relevant sources of the real estate law are the following: I. CIVIL LAW • BCC: The articles related to real property law are spread out throughout different chapters in our BCC i.e.: o M arriage: articles 215, 217, 223 and 224 of the BCC o Divorce: articles 302, 311 of the BCC o Parental authority: article 367 of the BCC o Im m ovable property, the definition of ownership and the different ways to obtain ownership: articles 516 until 577 of the BCC o Joint-ownership: articles 577-2 § 1 until 577-14 of the BCC o Usufruct and right of use: articles 578 until 636 of the BCC o Servitudes: articles 637 until 710bis of the BCC o Division of im m ovable property and attribution: articles 815 until 892 of the BCC o Gifts: article 893 of the BCC 1 Real Property Law Belgium – Draft Lawfort 29 September 2004 o W ills: article 967 of the BCC o Law of obligations1: articles 1101 until 1369 of the BCC o Patrim onial Fam ily Law: articles 1417 and 1418 of the BCC o Sale: articles 1582 until 1685 of the BCC o Exchange: articles 1702 until 1707 of the BCC o Lease: articles 1708 until 1762bis of the BCC (normal lease, residential lease and the commercial lease) o Farm lease o Securities and M ortgages (M ortgage Act dated 1851) • Specific Civil law acts such as2: o Long Lease Act dated 10 January 1824 o Building Right Act dated 10 January 1824 o M ortgage Credit Act dated 4 August 1992 o Act “Breyne” for the sale of a house or an apartm ent in construction II. TAX LAW The m ain articles can be found in the Tax Code related to the incom e of im m ovable property, the Registration Duty Code related to the transfer taxes and the VAT code for the sale of a new building. III. REGULATORY AND ENVIRONM ENTAL LAW These m atters (environm ental m atters, town planning, soil rem ediation and rights of pre-em ption) have been quite recently regulated (as from 1962) and have been object to of lot of m odifications throughout the last decades. As from the nineties, the power to regulate town planning, zoning and environm ental m atters has been assigned to the Regions (the Flem ish Region, the W alloon Region and the Brussels Area). Consequently, the applicable regulations vary depending on the location of the construction site. A detailed legislation on the rem ediation of soil and groundwater pollution only exists in the Flem ish region. In the W alloon Region, a decree has recently been enacted but has not yet entered into force. In the Brussels region, such detailed and integrated legislation does not yet exist, but is expected to be enacted in the near future. • Property law is uniform for the whole Belgian country except for transfer taxes and regulatory (adm inistrative) and environm ental m atters • Our real property law is based upon the principles of the French Code Napoleon and defends the right of each person or legal entity to have its 1 The general dispositions of the Belgian law of obligations apply on all contracts (also real estate contracts) save if a specific rule derogates from it. 2 W e have only enum erated the m ost im portant ones. 2 Real Property Law Belgium – Draft Lawfort 29 September 2004 own private property. In Belgium , we have a civil law concept of property. This philosophy has not been changed the last decades except the obligation to have an equilibrated contract pursuant to the European Directive on the unfair dispositions3 and the significant restrictions enacted the last years by the adm inistrative and environm ental law. • There are no plans in Belgium to change the real property law save the European project to establish a unified contract law. 1.2 Property and Estates 1.2.1 Estate versus Property • In Belgium , it is not possible for several persons to be “owners” of the sam e real property other than in the form of joint-ownership. W e ignore the system of feudal rights. Pursuant to articles 552 – 564 of the BCC, the ownership of real property is governed by three principles: o Ownership of land includes ownership of the ground and subsoil o Ownership of land includes all the proceeds and incom e deriving there from o Ownership of land includes ownership of all that is attached to it. According to this principle of accession, an owner of a plot of land norm ally has the property of all that is attached to it. The owner of a plot of land becom es thus the owner of any construction erected on his plot of land and of any im provem ent or transform ation m ade to the building, regardless of the identity of the person that erected the building and/or the ownership of the building m aterials. • The status of joint ownership (“copropriété/medeeigendom”) is applicable to real property divided between several people in different entities, each com prising a private part, plus a share into the com m on parts of the divided property. The basis deed (com posed out of the statutes of the building and the rules of joint ownership) determ ine which parts are com m on and which are private and how they are m anaged. The joint owners form together an association that has legal personality and is able consequently to represent the joint-owners towards 3rd parties (Article 577-5 of the BCC). • Although, we have different types of real rights that establish different kinds of “ownerships/enjoyments” on real property i.e.: (i) Long Lease: 3 Introduced in the Belgium by law dated 3 April 1997 3 Real Property Law Belgium – Draft Lawfort 29 September 2004 A long lease (“emphytéose/erfpacht”) is a right in rem that confers on its holder enjoym ent of a real property belonging to the granter (lessor) in consideration for a yearly charge, nam ed “canon”. This is essentially a tem porary right: it m ust be contracted for a period of from 27 to 99 years. The holder of the long lease right (lessee) m ay exercise all the rights attaching to the enjoym ent of the real property to which they pertain, provided that he does not reduce its value (e.g. he m ay rent the property out, or he m ay also plant or build, etc.). He can also burden the estate with a charge for the duration of his right. The holder of a long lease right m ay transfer his right; he m ay also m ortgage it, but only for the relevant duration. (i) Building Right: A building right (‘opstalrecht/superficie’) is a right in rem of a m axim um duration of 50 years (renewable) allowing its holder to own buildings, works or plantings erected on land belonging to another party. For the duration of his right, the holder is the sole owner of such assets: he m ay use, enjoy or dem olish them provided that he returns the land in the condition in which he received it. At the expiry of his right, the holder is entitled to claim recom pense for the actual value of the plantings, works or buildings he erected. The holder m ay transfer, m ortgage or grant an usufruct over his building right. (ii) Usufruct: A usufruct (“usufruit/vruchtgebruik”) is a right in rem that confers on its holder enjoym ent of a real property belonging to the naked owner with the obligation to m aintain the property in its original state. Legal entities can only beneficiate to a usufruct for a m axim um term of 30 years. He can burden the estate with a charge for the duration of his right. The holder m ay also m ortgage its right, but only for the relevant duration. • A Long Lease and a building right are often used for tax purposes, but also to take advantages of the contractual freedom of both system s. The only im perative rule with regard to a building right is that its duration cannot exceed 50 years and a Long Lease on the other hand shall im peratively have a duration of m inim um 27 years until 99 years. So these long term s agreem ents can be determ ined as to correspond to the expected econom ic duration of the project. 1.2.2 Superficies solo cedit • In Belgium , the ownership of a plot of land com prises also the ownership of all buildings erected on the land (the so-called ‘principle of accession’). According to the principle of accession as set forth in article 553 of the BCC, an owner of a plot of land norm ally has the property of all that is attached to it.