Since 23 November 2022, an asbestos inventory and a corresponding certificate are required for the transfer of houses or other buildings situated in the Flemish Region and built before 2001.
The obligation already applies to the private agreement (“compromis”) and not only to the notarial deed. It applies not only to sales but also to the creation of limited property rights, such as long leases, building rights or usufructs. The certificate is also required for corporate restructurings, especially for mergers, demergers and transactions assimilated to mergers or demergers, as well as for contributions or transfers of a universality or a branch of activity.
In contrast, the conclusion of a lease agreement does not require an asbestos certificate, but if such a certificate is available, the owner must provide it to the tenant.
In the case of an imminent transfer (in the broad sense), it is thus important to have the asbestos inventory drawn up by an expert in a timely manner. Based on the inventory, the Flemish Public Waste Agency (OVAM) will issue the asbestos certificate. If the certificate is not available upon signing of the private agreement, the buyer (or other acquirer) can invoke the nullity of the contract, which under the new law of obligations only requires a written notification (unless the agreement has already been notarised). The asbestos certificate thus completes the list of information duties sanctioned by nullity of the transfer agreement, which already included the soil attestation and urban planning information.
The applicable regulation is part of the Flemish Action Plan on Asbestos Abatement (Vlaams Actieplan Asbestafbouw), which also plans to require every owner of a house or other building built before 2001 to obtain an asbestos certificate by 31 December 2031 at the latest, even if no transfer of the property is envisaged.
Author: Siel Demeyere, Attorney