Today’s Belgian housing market is characterised by the coexistence of two types of real estate transactions: sales (which are strictly regulated) and leases. With regards to sales, it should be noted that their rules are particularly complex, with numerous requirements to meet in order for them to be considered valid under Belgian law.
On top of this, the Brussels-Capital Region introduced specific heightened formalities for sales of new buildings in 2018. The latter must now follow a process called “pre-certification”, whereby they benefit from certain advantages when acquiring an existing building which was already certified during construction. This measure may have the effect of increasing the cost of transferring ownership rights over property located in newly built structures in Brussels.
The sale itself of Real estate in Belgium (https://www.bluehomes.com/Immobilien-Belgien/B/de/debut.html) is defined as a contract by which the vendor transfers ownership rights over a building to the purchaser, who must pay a certain price for it.
The formalities required for a valid sale are set out in the 30th Title of the Civil Code. More precisely, these cover:
- The authentication of the deed : Article 1300 §2 of the Civil Code states that each page of an authentic deed must bear two subscribing witnesses’ signatures and be “authenticated” by two further authenticated signatures from parties other than those who signed the deed (e.g., notary public or lawyer). In principle, this authenticity requirement may also be fulfilled during electronic signings provided they comply with certain conditions (Article 1348)..
- An absolute prohibition on remunerations, known as “commissions”: Article 1304 of the Civil Code prohibits remuneration for the sale of real estate. This prohibition is absolute and therefore cannot be derogated by stipulation or waiver. Even so, it remains possible to have recourse to remuneration in cases where there are authorisations from the Minister responsible for Housing (i.e., currently Cécile Jodogne).
- Liability for social housing contributions : Sales are liable to social housing contributions unless exempted under certain conditions (Article 1798 §1).
- Subrogation against previous owners : An assignment of a right without transfer of ownership does not entail subrogation rights against priority creditors (Article 1822). Consequently, if someone who has bought real estate is later sued by the previous owner, he will not be entitled to use the benefits resulting from subrogation.
- Expropriation : Under Article 6 of the 18th Title of the Civil Code, it is possible for heirs who are absent or unknown (e.g., children born out of wedlock) to claim compensation for expropriated property during a period of 10 years following the sale. This right expires if no claim is filed within this timeframe..
The transfer must also be inscribed in public registers. However, some sales do not have to be inscribed with regard to certain formalities :
- Sales between spouses : The inscription on partition of property owned jointly by spouses can result in mutual exclusions of the right of first refusal (Articles 1374 and 1375). The principles laid down in Article 1422 §2 concerning sales between spouses do not apply to real estate transactions.
- Sales of individual dwelling units : Article 1056 of the Civil Code prohibits the inscription of sales related to individual dwellings.
- Exemptions according to prerogatives, privileges or other rights : When a sale is exempt due to an existing prerogative, privilege or other right, it does not need to be inscribed in order for its effects to take effect vis à vis third parties (Article 1829). This exemption also applies if the building’s classification as part of Belgium’s national heritage is at stake (Article 1832).
The traditional requirements linked to the sale must be fulfilled. It should therefore be noted that notaries and legal practitioners may only draw up a deed if they have received a mandate from both parties to conclude a contract of sale. Consequently, for example, transactions carried out without the knowledge or written authorisation of a spouse cannot have effects vis à vis third parties – although these can still validly take place between spouses (Article 1374). In instances where one party requests another’s presence during the signing of a contract which does not require this, the latter cannot validly refuse his/her signature ‘on principle’ – even in cases where he/she disputes their contents [In other words: These types of contracts are recognised as being valid by default].
However, formalities can sometimes be reduced. For example, a notary is not required to draw up a deed if the sale involves real estate of which at least one of the parties is already registered as proprietor or co-owner on public registers (Article 1264 §1). In principle, these types of transactions must still comply with certain formalities.
The authenticity requirement also requires that both spouses have signed this document prior to it being filed with a notary. To meet this requirement, the transaction between spouses can be carried out either orally or in writing .
- Sale by mandate : If the mandate concludes during a meeting held after signing the deed and its contents are verbally read back to one of the contracting parties, this requirement will be met (Article 1265).
- Sale by letter : In this case, the letter must be sent from one party to another and it must also be signed by both parties. The letter must indicate that it is a mandate for concluding a sales contract (Article 1266). It should also include all of its contents, namely: – the price or manner in which this will be fixed; – any particular conditions linked to the sale; – whether it concerns one or more buildings. If so, their content and location should be described as accurately as possible; – the date on which the transaction is due to take place.