On 1 September 2021, Belgium said goodbye the rules of property law as laid down in the Civil Code of 1804 and the Acts of 10 January 1824 on long-term leases and rights to build, to replace them by one set of rules in the (new) Civil Code. The (new) Civil Code consists of 9 books, whereby Book 3 “Goods” (Les biens / Goederen) includes the “new property law” (droit des biens / goederenrecht) divided into eight titles:
- Title 1: General Provisions (Dispositions générales / Algemene bepalingen)
- Title 2: Classification of goods (Classification des biens / Indelingen van goederen)
- Title 3: Ownership right (Droit de propriété / Eigendomsrecht)
- Title 4: Co-ownership (Copropriété / Mede-eigendom)
- Title 5: Neighbourhood relations (Relations de voisinage / Burenrelaties)
- Title 6: Usufruct right (Droit d’usufruit / Recht van vruchtgebruik)
- Title 7: Long-term lease right (Droit d’emphytéose / Erfpachtrecht)
- Title 8: Right to build (Droit de superficie / Opstalrecht).
Title 1 contains the general provisions applicable to all rights in rem (droits réels / zakelijke rechten), unless expressly exempted. Among these general provisions, and considering the commercial real estate sector, the most relevant provisions are as follows.
Closed system that leaves much room for contractual freedom
As before, rights in rem are subject to a numerus clausus, meaning that only the legislator can create new rights in rem. Pursuant to the new rules on property law, rights
in rem are divided into four categories: ownership, co- ownership, in rem rights of use (droits réels d’usage / zakel ke gebruiksrechten) and security interests.
The category of in rem rights of use includes the easements, the usufruct right, the long-term lease right and the right to build.
Within this closed system, however, the statutory provisions are suppletive, as the parties may derogate from them except (i) where de nitions are concerned and (ii) where the law provides otherwise (the most important example being the duration of certain in rem rights of use).
“The numerus clausus principle remains applicable but parties may derogate from some statutory provisions”
Power to dispose
Any holder of a right in rem may, in principle, dispose of it freely and encumber it with other rights.
However, three exceptions to this power to dispose should be kept in mind: (i) certain assets cannot be disposed of by their nature (e.g. inherent components of an asset, (the share in the) common parts (attached to the private lots)
in a forced co-ownership regime, the accessory right to build), (ii) the holder of an in rem right of use is limited in his power to dispose by his own right (nemo plus iuris), and (iii) the power to dispose may be limited by other legal provisions or, within certain limits, by contractual provisions.
In case of assignment of an in rem right of use, the mechanism of release of the assignor and solidarity is as follows: (i) the assignor remains jointly and severally liable for the personal obligations forming the consideration for the granting of the in rem right of use (e.g. a usufruct fee) even where they become due only after the assignment and (ii) the assignor is discharged from the other obligations related to the in rem right of use that become due after the assignment (e.g. the maintenance obligations of the usufructuary).
Grounds for termination and their effects
The Civil Code now contains a list of general grounds for termination of rights in rem and a list of speci c grounds for termination of in rem rights of use. These grounds for termination include, in particular regarding the usufruct right, the long-term lease right and the right to build: (i) annulment of the title, (ii) disappearance of the object (subject to subrogation in rem), (iii) expropriation, (iv) renunciation, (v) expiry of the legal or contractual term, (vi) confusion, (vii) forfeiture and (viii) non-use for 30 years.
The new property law thus con rms the grounds for termination, but also the case law relating to the effects
of these grounds for termination. A difference is made here between ‘normal’ grounds for termination, the consequences of which will be imposed on everyone, and grounds for termination considered ‘abnormal’, which have only a relative effect and cannot prejudice the rights of bona de third parties with a competing right.
These “abnormal” grounds for termination are: (i) renunciation, (ii) revocation, (iii) termination for non- performance, (iv) termination by mutual agreement, (v) confusion and (vi) forfeiture.
In particular regarding renunciation: it is speci ed that the renunciation is only valid for the future and that it does not prejudice the existing and future personal obligations of the holder of the right in rem that are to be considered as consideration for the right in rem.