Investor Guide to Europe 2014
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oWnERSHIP anD oTHER RIGHTS
in rem
Î
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 it. Other various subsidia-
ry
rights in rem
are derived from full and exclusive ownership.
Co-ownership
•
Ownership of a property or a group of properties divided into
co-ownership units among the various persons who own, each:
- privately-owned areas;
- rights over (i.e., share in) the common areas.
•
The division of the property is laid down and described in
regulations which 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.
Î
Leasehold
Long-term lease or long lease
(emphytéose/erfpacht)
•
Is the right to use without limitation (incl. the erection of buil-
dings) the real estate concerned in return for payment of an
annual ground rent.
•
Is 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.
•
Must be drafted under a notarized form and transcribed in the
mortgage registry.
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).
•
Is a right in rem that may be mortgaged, and so may the buil-
dings erected by the tenant on that land.
•
Maximum term is 50 years (renewable).
•
In return for payment or could be granted for free.
•
Must be drafted under a notarized form and transcribed in the
mortgage registry.
RIGHTS
(in rem)
affECTInG
oWnERSHIP (fREEHoLD/LEaSEHoLD)
Î
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 encum-
bers – servient land – and to the benefit of adjoining assets
which it enhance – dominant land.
•
Easements are transferred with the related tenement.
•
The owner of a dominant land may carry out any works requi-
red for the use or preservation of the easement but 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.
Î
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 pos-
session of the asset, which has been offered as security, even if
it is in the possession of a third party.
Î
Pre-emption right
•
Is the statutory option given to certain public authorities,
because of general public interest purposes. This right is held
by public entities and prevails over any rights of pre-emption
held by private persons or entities.
aCQuISITIon PRoCESS:
KEY STaGES
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.
Î
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.
Î
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
PRoPERTY LaW
