15 / 132
PROPERTY LAW
Ownership and other rights in rem
Freehold
Ownership
• Under Belgian Civil Code (“BCC”), “ownership” is defined as
the right to enjoy and dispose of assets in the most absolute
way, so long as no unlawful use is made of those assets. Other
various subsidiary rights are derived from full and exclusive
ownership. These are called real rights or rights in rem.
Co-ownership
• Defined by the BCC.
• Ownership of a property or a group of properties divided into
co-ownership units among the various persons who own it.
• Property or a group of properties consist of:
–– privately-owned areas (“parties privatives”/“privatieve
delen”);
–– rights over (i.e., share in) the common areas (“parties
communes”/“gemeenschappelijke delen”).
• The division of the property is laid down and described in
regulations (“acte de base”/“basisakte”). These regulations
identify each unit with a number, indicate its location, and
contain a complete description of the private and common
areas of the property.
• Each co-owner has a right to use the common areas, and each
shares the related service charges.
Leasehold
Long-term lease or long lease (“emphytéose”/“erfpacht”)
• Is the right to use without limitations (which includes the
erection of buildings) the real estate concerned in return for
payment of an annual ground rent (“canon”).
• Tenant is granted a right in rem that can be mortgaged and
transferred.
• Term is between 27 and 99 years and may not be extended by
tacit renewal.
• Tenant has the right to construct a building, grant leases and
active or passive easements for the maximum term of the
lease.
• Tenant is responsible for operating the building and for all
costs related thereto.
• To ensure that the lease is enforceable against third parties
of good faith, it must be drafted under a notarized form and
transcribed (“transcription”/“overschrijving”) in the mortgage
registry (“registre hypothécaire”/hypotheekregister”).
Building right or right to build (“superficie”/“opstal”)
• Is the right to own any building that he erects on someone
else’s real estate (land/building).
• Tenant enjoys a right in rem that may be mortgaged, and so
may the buildings erected by the tenant on that land.
• Tenant has the right to grant leases and active or passive
easements on the buildings it erected for the term of the
building right it holds.
• Maximum term is 50 years (renewable).
• In return for payment or could be granted for free.
• To ensure that the building right is enforceable against third
parties of good faith, it must be drafted under a notarized
form and transcribed in the mortgage registry.
The provisions governing both long-term lease and building
right (except for the maximum/minimum duration, among other
things) are laid down in broad, non-mandatory laws, which
implies that the parties may adapt the terms of their agreement
as they wish on condition that they remain in line with the main
features of these laws.
Rights (in rem) affecting ownership (freehold/
leasehold)
Easement (“servitude/“erfdienstbaarheid”)
• Is a use or burden imposed on a real estate (land/building) to
permit the use of one’s real estate (land/building) by another
owner for specified use (e.g., right of way, etc.).
• Is exercised to the detriment of the real estate which it
encumbers – servient land (“fonds servant”/“lijdend erf”)
– and to the benefit of adjoining assets which it enhance –
dominant land (“fonds dominant”/“eersend erf”).
• As an attribute of the affected right in rem, easements are
transferred with the related tenement.
• While the owner of a dominant land may, at its expense, carry
out any works required for the use or preservation of the
easement, this owner may not do anything that will aggravate
the situation of the servient land.
• The owner of the servient land must allow the easement to be
exercised without doing anything to restrict it.
Mortgage (“hypothèque”/“hypotheek”)
• Is the right in rem of a real estate asset granted by a debtor to
a creditor as security for a money debt whereby the creditor
(beneficiary) is given a preferential right over other creditors
in the event of a forced sale of that real estate asset.
• Confers a droit de suite entitling a secured creditor to take
possession of the asset, which has been offered as security,
even if it is in the possession of a third party.
Pre-emption right
• Is the statutory option given to certain public authorities,
because of general public interest purposes, instead of any
other buyer (person/entity) in a real estate.. Is held by public
entities and prevails over any rights of pre-emption held by
private persons or entities.
ACQUISITION PROCESS:
KEY STAGES
General comments
• Foreign investors wishing to carry out real estate transactions
do not need any prior authorisation.
• In addition to the general provisions of the BCC, decrees
issued at regional level (environmental and zoning regulations,
registration duties, etc.) apply, depending on where the real
estate is located: Flemish-, Walloon-, or Brussels Capital
Regions.
• Real estate deals are structured as an asset deal or share deal,
i.e., purchase of the shares in the company whose asset is
only the real estate. Share deals are often carried out so that
registration duties (Cfr. “TAX” section hereunder) could be
avoided.
15
Investors Guide to Europe 2015