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Negotiations
• A non-disclosure agreement can be proposed by the seller/
agents in order to allow the buyer access to the property, its
information, and its documentation.
• The would-be buyer may issue a letter of intent that can be
indicative or binding.
• Discussions can be pursued under a preliminary agreement
whereby an exclusivity period during which due diligences can
be carried-out and at the expiry of which the would-be buyer
is expected to confirm or withdraw its initial intention/offer.
Private deed of sale (“compromis de
vente”/“verkoopcompromis”) – Asset deal
• Usually, a private deed of sale is drafted and signed. It lays
down and binds the parties with the terms and conditions of
the sale.
• Without being exhaustive, essential clauses that should be
added to the private deed of sale (asset deal) usually cover:
–– the transfer/reservation of ownership until the purchase
price is paid or the notarial deed is executed;
–– the enjoyment and possession of the real estate as well as
the transfer of risk;
–– the seller’s guarantees;
–– the applicable zoning and urban planning laws;
–– the costs, charges, and other (registration) duties;
–– any condition precedent: soil pollution, permits, loan
agreement, energy performance certificate (“certificat de
performance énergétique”/“energieprestatiecertificaat”),
etc.;
–– conditions relating to title (co-ownership, possible
easements, etc.);
–– sanctions for default;
–– insurance clause.
Under the BCC, the seller must guarantee (i) there are no
restrictions on the use of the real estate whether by the actions of
the seller or third parties and (ii) there are no invisible defects.
On the other hand, parties may both extend and limit the seller’s
obligations.
The mortgage register does not indicate any fides publicae. One
should not assume that the information contained therein reflects
accurately the legal state of the real estate. The mortgage register
has only a so-called limited “negative” protection: the third party
transferee is only protected against the facts that should have
been transcribed or inscribed but are not, and which he or she did
not know of. And since neither the mortgage registry nor the land
registry (“cadastre”/“kadaster”) can give certainty with respect to
the ownership title over a real estate, it is general practice that the
seller gives its representation and warranties in this respect.
Notarial deed of sale – Asset deal
• Is usually the deed according to which ownership is actually
transferred from the seller to the buyer; it must be notarised
and is the fulfilment agreement of the private deed.
• As a principle, there is no re-negotiation of the terms and
conditions of the private deed.
• The notarial deed of sale will be transcribed in the mortgage
registry by the not
Off-plan sale (“vente en état futur d’achèvement”/“Verkoop van
nog op te richten gebouwen”): (i) used for selling buildings that
have not yet been constructed; (ii) the seller undertakes to erect
the property in accordance with agreed specifications, price, and
deadline; (iii) the seller provides the buyer with completion and
defects guarantees; (iv) the buyer usually pays certain percentage
of the price when certain construction steps/phases are reached,
up to completion; (v) on the date of the (notarial) deed of sale,
the transfer of ownership applies to the land and any existing
construction; (vi)the seller remains liable for construction defects
according to the legal constructors’ warranties for periods of one
year, two years, and ten years.
COMMERCIAL LEASES
Civil leases (offices)
• Governed by specific provisions of the BCC and other laws,
such as tax or environmental regulations.
The BCC’s provisions are broad and not all of them are mandatory,
which implies that the parties may adapt the terms (e.g.
obligations of the lessor and the lessee) of their agreement as
they wish.
• In principle, office lease contracts are governed by BCC’s
specific provisions.
Form – Duration – Rent
• Although oral contracts can be created, all office leases are
usually in writing.
• No legal minimum or maximum duration; the most common
is a nine-year lease with a break option for one or the other
party at the end of each three year period (by giving prior
notice to the other party).
Leases with an initial duration of more than nine years must be (i)
recorded in the mortgage registers and therefore (ii) notarized.
• Rent (which is VAT-exempt) is an essential element of a lease
(“No rent, no lease”).
• If the parties agree to indexation (which is common market
practice), the BCC stipulates a binding method which should
be used for calculating the indexation (consumer price index).
(Landlord) Lessor’s principal obligations
• To deliver and maintain the leased real estate according to the
use for which it was leased.
• To allow (the tenant) lessee to enjoy peacefully its right of use
and occupation over the leased real estate.
• To be responsible for and bear the charges of major repairs
and any damage caused by an Act of God.
• To guarantee the (tenant) lessee any and all (latent) defects
of the leased real estate.
(Tenant) Lessee’s principal obligations
• To use the leased real estate according to the standard of
care of a “good family father” (“bonus pater familias”) in
compliance with the agreed purpose.
• To pay the rent and, as the case may be, charges related to
the leased real estate.
Most lease contracts stipulate that the costs and rental charges
(e.g., withholding tax on immovable property (“précompte
immobilier”/“onroerende voorheffing”) are to be borne by the
lessee.
• To be responsible for damage caused by fire, unless he/she
proves that he/she did not cause the fire.
• At the end of the lease, return the property in the state that
is described in the incoming inventory of fixtures (“état des
lieux”/“plaatssbeschrijving”), which is mandatory.
16 Investors Guide to Europe 2015