Belgium: reform of property law

This law provides for one of the very few reforms of Belgian property law since the entry into force of the Civil Code (also called the “Code Napoléon”) in 1804, under the French regime, and of the law on the right of emphyteusis (long-term lease) and the law on the building right (right of superficies) in 1824, under the Dutch regime. Of course, since the beginning of the nineteenth century, Belgian property law has undergone several developments due to case law.

The Law of 4 February 2020 has modernised many rules, among others the right of ownership, the right of coownership, neighbourhood relations, the right of usufruct (“usufruit” in French / “vruchtgebruik” in Dutch), the right of emphyteusis (“emphytéose” in French / “erfpacht” in Dutch), and the building right (“droit de superficie” in French / “opstalrecht” in Dutch).

The reform is of significant interest for the real estate sector. For operational, financial, and/or tax optimisation purposes, many professionals are developing and implementing their projects within the framework of a long-term lease, a building right, or a right of usufruct. The right of emphyteusis is defined as a right in rem to the use, conferring on its holder (the long-term leaseholder) the full use and enjoyment of a building belonging to another person (the owner). The right of emphyteusis is not a lease in the common sense, but a right in rem. Originally, the right of emphyteusis was granted for a minimum period of 27 years and a maximum of 99 years. In the future, the minimum period will be 15 years (the maximum period will remain 99 years).

The building right has been redefined. It is a right in rem to the use, which confers the ownership of volumes, whether built or not, in whole or in part, on, above, or below another person’s land, in order to have any works or plantations. The building right allows its holder (the superficiary) to develop a project and erect a building on a property belonging to someone else (the owner). The building right was originally limited to 50 years; now it will be possible to grant it for a term up to 99 years. However, the Law of 04 February 2020 also allows the building right to be made perpetual for certain specific uses or building complexes.

The right of usufruct confers on its holder (the usufructuary) a temporary right in rem to the use and enjoyment, in a prudent and reasonable manner, of a property belonging to the “bare” owner, in accordance with the destination of this property and with the obligation to return it at the end of his/her/its right. In practice, a right of usufruct is sometimes used to secure a transaction over time. It is also used to acquire a property in a split transaction. Initially, when the right of usufruct was granted to a legal person (versus an individual), it might be granted for a maximum of 30 years. Now, under the Law of 04 February 2020, an usufruct may be granted to a legal person for a maximum of 99 years.

The theory of abnormal neighbourhood disturbances is a creation of case law based on the right of property. According to this theory, an owner may have to compensate for an abnormal disturbance caused to his/her/its neighbour, even without any fault. This jurisprudential theory has been adapted and incorporated into the Belgian Civil Code by the Law of 04 February 2020.

The reform provided for by the Law of 04 February 2020 relates to many other issues: the definition of immovable property has been modernised to include 3D volumes; property ownership is no longer infinite (theoretically from the centre of the earth to the sky) and limited to a height above and a depth below the ground useful for the exercise of the owner’s prerogatives, etc.

In conclusion, the Law of 04 February 2020 offers a revised framework to the real estate sector. Moreover, it has settled jurisprudential controversies, so that it provides for more legal certainty. The Law of 04 February 2020 will enter into force on 01 September 2021.

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Photo: JeanLuc - stock.adobe.com