10 September 2020

A building right is no longer limited to a maximum duration of 50 years. Now you can establish a building right for 99 years or even in perpetuity. This opens up new perspectives!

In February 2020 a far-reaching reform of property law, prepared by Eubelius attorney Vincent Sagaert and Prof. P. Lecocq, saw the light. One important innovation is the extension of the maximum duration of building rights to 99 years and, under certain exceptional circumstances, even in perpetuity.

Although the Property Law Reform Act only enters into force on 1 September 2021, the transitional provisions make it possible to already establish a perpetual building right (or a building right with an indefinite duration). The perpetual building right offers the possibility of creating a perpetual vertical separation of ownership without the need to apply  the regime for condominiums.

You can establish a perpetual building right in two situations:

  1. to construct a structure pertaining to the public domain (e.g. a public car park under an apartment building).
  2. to divide a heterogeneous real estate complex into several units designated for different uses that are subject to independent management and between which there are no common parts (e.g. a private car park under an apartment building or a shopping  centre).
     

Beware of these potential pitfalls:

  • If you connect the separate areas through easements, ensure that you are not circumventing the mandatory provisions applicable to condominiums.
  • If the building right does not fit into one of the above categories, then its duration is 99 years unless the agreement specifies a shorter duration.  
  • If the conditions of the perpetual building right are no longer met (e.g. because the structure no longer pertains to the public domain), then the judge must limit its duration to 99 years starting from the moment that the conditions were no longer met.
  • If the building right has not been used to build the structure within 30 years, then the building right will be extinguished through prescription.
  • If the building right has existed for at least 99 years, a judge may order its termination if the right has lost all purpose.