Just before the end of the previous legislative period, the Flemish Parliament adopted new rules on materials containing asbestos. These rules create a new framework for the inventory, management and removal of materials containing asbestos.
The Flemish Decree of 29 March 2019 adds a new section concerning materials containing asbestos to the Flemish Materials Decree of 23 December 2011. The Flemish legislature came to the conclusion that there was no centralised information available regarding asbestos present in buildings and infrastructure, while there is good chance that buildings and infrastructures dating from 2001 or earlier contain materials containing asbestos (materials produced or installed between 1945 and 2001 – especially between 1955 and 1985 – are likely to contain asbestos). Moreover, there is currently no asbestos inventory for most of the buildings and infrastructures at risk.
The Flemish Parliament has introduced an inventory obligation in order to record the asbestos present in buildings and infrastructures. This inventory obligation is twofold. On the one hand there is a specific inventory obligation linked to a transaction. On the other hand there is a general obligation for owners to be in possession of a valid asbestos inventory attestation by 31 December 2031 at the latest.
The new rules for materials containing asbestos are designed to facilitate an accelerated run-down in the Flemish Region, with 2034 and 2040 as milestones. 2034 is set as a milestone for the run-down of the most risky materials containing asbestos (especially roof and exterior wall materials). 2040 is set as the target date for an asbestos-safe Flanders: the end milestone of 2040 is the final goal for the removal or safe management of all the other materials containing asbestos with a higher risk. The obligation to remove materials containing asbestos only applies, however, to public structures, because of the exemplary role of the Government and the public nature of these structures. For other structures, the milestones of 2034 and 2040 at least serve as target dates.
The inventory obligation pursues several objectives, including:
- to inform, protect and raise awareness among building owners, professionals, emergency services and supervisors;
- to create a clear framework for the obligation to inform in connection with the transfer or renting of structures; and
- to identify risk situations and materials containing asbestos.
The inventory obligation provides legal certainty for owners, notaries and real estate agents. At the same time, buyers and lessees are protected, since they are informed concerning the presence of materials containing asbestos.
Every owner of an "accessible structure with an at-risk date of construction" must be in possession of a valid asbestos inventory attestation by 31 December 2031 at the latest. This requires a prior inventory, which also becomes mandatory.
Only "structures" are concerned, which, in this context, refers to buildings, permanent establishments or reinforcements which are built in, fixed to or lean on the ground for the purposes of stability and that are intended to stay at their location.
The structure must also be "accessible", which means that people can enter it. This is the case when a structure's roof is supported by construction elements and when a person can normally stand or walk in the structure.
In order to be subject to the inventory and attestation obligations, the structure must date from an at-risk date of construction, which means that it must date from 2000 or before.
Certain structures are excluded from the inventory obligation: public underground infrastructure intended for the transit, transport, transmission or distribution of solids, liquids and gases, energy or information.
Accessible public technical structures with an at-risk date of construction are also excluded from the obligation. These are structures which are accessible for persons, which have an at-risk date of construction, which are of public interest and which have a primarily technical function (i.e. technical works of art in the sense of the "Grootschalig Referentiebestand" as well as line infrastructure in the sense of the Flemish Urban Planning Code).
An asbestos inventory is carried out by an "asbestos inventory expert". The inventory is preceded by an inspection in and around the structure. Subsequently, the inventory is registered in a central asbestos inventory database at the OVAM.
The asbestos inventory attestation
After an asbestos inventory has been made, an asbestos inventory attestation will be obtained. If the asbestos inventory has been fully and correctly carried out and registered in the central database, the OVAM will grant a unique asbestos inventory attestation. The attestation, which must be obtained by 31 December 2031 at the latest, contains information including the period of validity of the attestation, the structure containing asbestos itself and the materials containing or suspected of containing asbestos. Further rules on the content, the issuing and the validity period of the asbestos inventory attestation will be determined by the Flemish Government.
Obligations when transferring structures
From now on, the owner of a structure which is accessible for people, with an at-risk date of construction, has an obligation to inform the prospective buyer in connection with the transfer of that structure. If the transfer relates to a structure held in joint ownership, the obligation to inform concerns both the private part and the common parts of the structure.
The obligation to inform entails the owner communicating a valid asbestos inventory attestation to the prospective buyer before the closing of the contract. The date, the summary conclusion and the unique code of the attestation must be communicated. Thus, this information obligation is similar to the obligation relating to soil attestations, energy performance and electrical installations.
The authentic transfer deed must state whether a valid asbestos inventory attestation was communicated to the buyer. After the passing of the authentic deed, the notary registers the new owner in the asbestos inventory database.
The Flemish Government is empowered to further determine the rules on the information obligation and to provide for exceptions to the obligation.
The buyer can demand the nullity of the transfer when the obligation to inform is not complied with, i.e. when he was not informed about the content of the asbestos inventory attestation before or at the closing of the contract or passing of the authentic deed. Only the buyer can invoke nullity. However, nullity can be covered if the buyer waived the possibility of invoking nullity and the asbestos inventory attestation was still communicated to him.
Entry into force
The date of entry into force of these new rules will be determined by the Flemish Government.