15 June 2014

The act of 10 January 1824 on building and planting rights is probably one of the oldest acts currently in force in Belgium. Finally, and for the first time in 190 years, the act has been amended. The "new" act came into force on 24 May 2014.

The draft act containing various provisions on justice was introduced on 26 November 2013. One of the acts that it amended is the act of 10 January 1824 on building and planting rights.

The draft act had been introduced by a working group composed at the initiative of the Royal Federation for Notaries Public and including leading academics. Within the notarial world, legal uncertainty had been increasing as to the scope of building and planting rights. In particular, the question was (i) whether it was possible to establish building and planting rights for construction on other people's buildings (i.e. not only for construction on other people's land) and (ii) whether, in that case, the owner of the building had to be the owner of the land. Moreover, it was unclear whether building rights could be established for construction under the ground (e.g. tunnels) or above the ground (e.g. solar panels), i.e. not only for structures on the ground.

In order to put an end this uncertainty, the working group drafted amending legislation.

We highlight here the most important amendments.

The new article 1 of the act now defines building and planting rights as "rights in rem to have buildings, works or plants totally or partly on, above or under other people's land" (emphasis ours). Thus, it is clear that building and planting rights can not only be established for structures on the surface but also for construction above or beneath the surface, and the structures can be built on another person's building (i.e. not only on another person's parcel of land). Consequently, building and planting rights no longer prerequire direct incorporation in the ground. According to the explanatory memorandum, this follows from the concept "above (…) other people's ground".

A second paragraph is added to the new article 1, stipulating that "building and planting rights can be established by any holder of rights in rem within the limits of his right". Hence, it is now clear that holders of limited rights in rem (such as long leaseholders, holders of building rights and beneficiaries of usufruct) have the right to grant building and planting rights within the limits of their own right in rem (cf. "nemo plus iuris ad alium transferre potest quam ipse habet"). According to the explanatory memorandum, this means that (i) building and planting rights need to be granted within the limits of the underlying rights, (ii) the powers attached to building and planting rights cannot be extended beyond the powers of the person who grants the rights, and (iii) the duration of building and planting rights can never be longer than the duration of the underlying right (unless the landlord himself agrees). Consequently, leaseholders, holders of building rights or beneficiaries of usufructs have the right to grant building and planting rights as long as the above-mentioned conditions are respected.

For consistency with the idea that building and planting rights do not necessarily imply a connection with another person's land, the concept of "land owner" in articles 5, 6 and 7 of the act is replaced by the concept of "grantor of building and planting rights or his legal successor". This is logical, since the grantor of building and planting rights does not necessarily need to be the land owner.

These amendments in the "new" building and planting rights act are not necessarily modifications vis-à-vis the "old" building and planting rights act, but in any event they bring clarification in place of the uncertainty. Since legal certainty is the basis of every real estate transaction, these modifications can only be welcomed.