BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Donald Krols and Astrid Laga, Linklaters
• Usufruct – temporary entitlement to prudent and reasonable use and enjoyment of some - one else’s property, in accordance with the property’s purpose, with the obligation to return the property upon expiration or the right (upon death of the holder or, for legal persons, their bankruptcy or dissolution). • Long-term lease right – a right to extensive use and enjoyment of another’s property for a minimum of 15 years up to 99 years (can be perpetual, in case it is granted for public domain purposes). • Right to build – ownership right of volumes (constructed or not) on another person’s property, for the purpose of erecting buildings or plantings, lasting up to 99 years (or per - petual, subject to conditions). Real securities, including special privileges, mortgages, pledges, and retention rights, also fall within this closed system (ie, numerus clau - sus system). 2.2 Laws Applicable to Transfer of Title In asset deal transactions, the general principle is that the transfer of ownership occurs when parties agree on essential elements (mainly the object and price). Exceptions may apply, such as court-ordered transfers in the context of owner - ship disputes. 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 preference, pre-emp - tion and/or option on/to a property 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.
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