BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Donald Krols and Astrid Laga, Linklaters
2.6 Important Areas of Law for Investors When preparing for a real estate transaction, investors should review: • conditions impacting titles on properties such as pre-emption rights, specific stipulations (such as easements), applicable environmen - tal aspects, and obligations, including poten - tial remediation requirements (see 2.7 Soil Pollution or Environmental Contamination ); • lease agreements legislation (such as the Retail Lease Act of 30 April 1951); and • for development investments – local zoning regulations affecting project acceptability. Investors also need to consider tax, urban plan - ning, and permitting aspects. Most develop - ment/construction projects require prior approv - als from public authorities, such as building and environmental permits, in addition to specific authorisations based on the business type/size (eg, hotels, restaurants and cafes). 2.7 Soil Pollution or Environmental Contamination To determine if a real estate purchaser (or real right grantee/transferee) is responsible for soil pollution or environmental contamination on a property, it is necessary to differentiate between the regulatory framework (eg, conducting soil surveys and remediation) and civil liability (which addresses the financially responsible party for pollution-related costs and damages). Regulatory Framework Each region has enacted soil legislation defin - ing the party responsible for soil surveys and remediation. • Flemish region – first on the operator of a listed activity, then the user (through personal or real rights), and finally the landowner.
• Brussels-Capital region – the responsibility varies with the contamination nature and may fall on the current operator, the polluter, or the holder of real rights (including the owner). • Walloon region – the responsibility falls upon the volunteer to perform the obligation, then to the polluter, the operator, real rights hold - ers, and, lastly, the landowner. Legal obligations under the soil legislation (eg, providing a soil certificate and performing soil surveys or remediation), are triggered by events such as real rights transfers, corporate restruc - turing, specific permit applications, etc. Civil Liability In all regions, the person carrying out soil sur - veys and remediation – whether voluntarily or following a legal obligation – can seek damages from the polluter under general civil liability law (and provided that the relevant statutes of limita - tion have not been expired, ie, generally 20 years after the day on which the event that caused the damage occurred). Additionally, specific strict liability rules for polluters under the soil legisla - tions may apply in certain scenarios. In the context of a real estate asset deal, the sell - er is usually responsible to perform soil surveys and soil remediation works (should the deal trig - ger such obligations). However, the buyer could also be responsible depending on the structure of the deal and the agreement of the parties. Asset Deal Structure Asset deals are a triggering event of the obliga - tion to conduct a preliminary soil survey prior to closing in both the Flemish and Brussels-Capi - tal regions, provided that the soil is considered “risk” soil (ie, a soil where there might be a risk of pollution due to previous or current listed activi -
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