On 1 March 2018, the Walloon Region adopted a long-awaited decree on soil management and decontamination that repeals and replaces the decree of 5 December 2008 which never entirely entered into force.
The majority of the new provisions will enter into effect on 1 January 2019.
Please find below an overview of the new rules on real estate transfers.
Soil condition database
Pursuant to the new decree, the regional authorities will gradually establish and manage a soil condition database. The database is already available on the following site. However, it should be noted that until the entry into force of the Soil Decree on 1 January 2019, the content of the database is purely indicative.
Obligations in the event of a real estate transfer
Certified soil condition report
The new decree defines a "transfer" of real estate as: "any act of conveyance, constituent act, declaration of legal status or waiver of a right in rem, the extension thereof as well as the creation, transfer or extension of in personam rights of more than nine years, including real estate leasing and company asset transfers and contributions, with the exception of familial acts and acts occurring in the context of involuntary co-ownership listed by the government".
The decree provides that upon a transfer of land or an environmental permit, the transferor must request, for each parcel being transferred, regardless of whether it is registered or not, a certified copy of the information contained in the soil condition database and immediately inform the transferee of the content thereof.
The regional government will adopt a decree determining the period of validity and terms of such requests and the procedure for issuance of the certified copy.
If the database does not contain any information about the land concerned, the report must expressly mention this fact.
Real estate transfer agreement
Any private agreement or notarial deed relating to a transfer of real estate must include:
- the content of the certified soil condition report;
- a declaration by the transferor that the transferee was informed, prior to the transfer agreement, of the content of the certified soil condition report;
- a declaration by the transferee that it was informed of the content of the certified soil condition report;
- the intended use which the transferee intends to make of the land;
- a declaration by the transferor, with no prior investigation being required, that it has no further information which could affect the content of the certified soil condition report.
The certified soil condition report referred to in the agreement or notarial deed must be less than one year old.
Nullity of the transfer
If the transferor fails to comply with the abovementioned obligations, the transferee can seek to void the transfer if the land is indicated in the soil database as being polluted or potentially polluted.
However, nullity cannot be requested if the following two cumulative conditions are met:
- the abovementioned obligations were executed in full prior to execution of the notarial deed;
- the transferee expressly waives in the notarial deed the right to request nullity.
Soil remediation obligations
The Soil Decree provisions identifying persons with soil remediation obligations do not prevent the parties from agreeing on other terms in the context of their contractual relationship.
Any agreement relating to a transfer of land which is indicated in the soil database as being polluted or potentially polluted shall stipulate, where the transferor is the subject of an administrative decision in this regard, whether the soil remediation obligations shall be performed by the transferor or transferred to the transferee. In the latter case, the transferor and the transferee shall be jointly responsible for informing the authorities. The real estate transfer will then be subject to prior notification of the authorities and to imposition on the transferee of soil remediation obligations.