BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Gauthier Callens, Linklaters
Regarding share deal transactions, the transfer of special purpose vehicle’s shares also gener - ally occurs through the consent of the parties on the essential terms of the transaction. Court decisions may also be a source of transfer of shares (eg, in the context of a dispute between shareholders). Prior to the transfer of share ownership, formali - ties such as pre-emption rights or approval by existing shareholders may be required, often stipulated in articles of association/sharehold - ers’ agreements whereas various operations causing the issuance of shares require for - malities such as publishing a (de)merger draft in the annexes to the Belgian Gazette at least six weeks prior to the relevant general meeting resolution and/or preparing reports by the man - agement body of the company and a chartered/ statutory accountant (for example, in case of a contribution in kind). Additionally, the recording of the transaction in the company’s share register post-transfer or issuance is mandatory. 2.3 Effecting Lawful and Proper Transfer of Title In addition to the principle of consensual agree - ment described in 2.2 Laws Applicable to Transfer of Title , the completion of the trans - fer or granting of real rights in Belgium requires specific formal actions, such as transcription and registration, which will cause the transfer or granting of real rights to be enforceable against third parties. Usually, the transfer of title/granting of real rights must be recorded in a notarial deed and then transcribed in the Belgian mortgage register. Are also transcribed in this register (amongst others)
deeds granting a right of pre-emption to a prop - erty and leases longer than nine years. 2.4 Real Estate Due Diligence Sellers of real estate assets have an obligation to provide information on the condition of the asset (including known hidden defects) and therefore typically constitute a data room populated with relevant information needed for a buyer to make an informed decision. Buyers usually conduct a legal due diligence on real estate assets based on the data room and public registers information, covering areas such as: • ownership title and encumbrances; • occupancy agreements; • construction agreements; • business, repair and maintenance agree - ments; • insurance coverage; • existing or potential legal disputes; and • property’s tax obligations and financial infor - mation. These legal analyses also often cover environ - mental and planning aspects such as: • planning status; • permits; • soil condition; • asbestos presence; and • energy efficiency compliance. When purchasing shares of a company that holds real estate assets, due diligence also includes examining the company’s financing agreements, corporate structure, employment agreements (if any) and accounting and tax obligations.
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