What are the most important areas of public law for an investor to consider when purchasing real estate?
Planning and zoning regulations must be verified. These vary depending on the property’s location. The Flemish, Walloon and Brussels Capital regions have each adopted their own regional zoning regulations. These provide the framework for local/municipal regulations.
Similar regional variations apply to environmental rules (eg each of the three Regions has its own regulatory framework governing the energy performance of buildings)
In the Flemish region, where environmental rules are most developed, all real estate sales generally have to be accompanied by an ‘orientating’ soil survey when certain hazardous activities have been, or are being, carried out. If contamination is found in this orientating survey, a more detailed ‘descriptive’ soil survey must be conducted and this may identify a clean-up obligation.
On 1 March 2018, the Walloon Parliament adopted a Soil Decree which came into force on 1 January 2019. No specific obligation applies in case of asset purchases except the obligation for the seller to provide the purchaser with a soil attestation. The asset purchases themselves do not trigger any other specific obligation than providing the purchaser with said soil attestation.
On 13 May 2004, the Brussels Capital region also adopted a Soil Clean-Up Act. This Act was updated on 5 March 2009, and the update came into force on 1 January 2010; it was further updated pursuant to a decree dated 23 June 2017 which came into force on 23 July 2017. A preliminary soil investigation must be carried out before the transfer of rights to real estate where hazardous activities are being, or will be, carried out. This is also required before commencing or terminating hazardous activities. The person transferring the real estate must bear the cost.
As a result of EC Directive 2002/91 regarding the energy performance of buildings, each of the regions have adopted legislation to increase the energy efficiency of several different types of building. This Directive has been replaced by the Recast Directive (Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings). Among other things the new directive contains stricter building standards. The Recast Directive was amended to some extent by the Energy Efficiency Directive (Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency). The legislation in the regions is being amended in order to comply with this new legislation.
On 22 December 2006 the Flemish region adopted an Energy Performance Decree for buildings. This decree gives the Flemish Government the power to make lists of mandatory energy performance criteria, both for existing and for new buildings, and different lists can be created for different types of building. Furthermore, the decree gives the government the power to introduce mandatory ‘energy performance certificates’. These certificates contain ‘reference values’ for comparing the energy performance of similar buildings and advice on how to increase the energy efficiency of the building in a cost-efficient way. The Flemish Government has made these energy performance certificates mandatory when non-residential, residential and public buildings are sold or rented.
The decree mentioned above, was replaced on 1 January 2011, by the ‘Energy Decree’ of 8 May 2009, which is a very general decree, also containing a chapter entitled ‘Energy performance of buildings’. The principles, explained above, still apply. The Energy Decree was further updated pursuant to a decree dated 24 February 2017 which came into force on 1 April 2017.
The Executory Decree of 19 November 2010 also contains regulations concerning energy performance. Its main purpose is to indicate how energy performance is to be calculated and to indicate the energy performance requirements and the requirements for the interior climate of buildings.
This Executory Decree was amended by the Alteration Decree of 28 September 2012 following European Directive 2010/31/EU. As from 1 January 2014, this Decree requires that newly built buildings for housing, school or office purposes, must generate a certain amount of energy out of renewable energy resources.
On 1 May 2015, the Decree of 28 November 2013 concerning the energy performance of buildings and its Executory Decree of 15 May 2014, came into force.
This Decree and Executory Decree:
On 7 June 2007 the Brussels Capital region adopted its Energy Performance Decree for buildings. The partial amendment of the decree made on 14 May 2009 came into force on 6 June 2009. This decree gives the Brussels Government the power to specify energy performance criteria for new buildings and buildings being renovated, and the power to introduce energy performance certificates. On 19 June 2008 the Brussels Government adopted an Executory Decree specifying that new and renovated buildings used for housing, offices, services and education require an energy performance certificate, with similar content to the Flemish certificates. On 27 May 2010 the Brussels government adopted an Executory Decree specifying the requirement for an energy performance certificate for public buildings. On 17 February 2011 the Brussels government adopted an Executory Decree specifying the requirement for an energy performance certificate for non-residential buildings and an Executory Decree specifying the requirement for an energy performance certificate for residential buildings.
All these Decrees were abrogated by the Decree of 2 May 2013 enacting the Brussels Code of Air, Climate and Energy Control. Books I, III and IV of this Decree, providing for the general principles and specific provisions on air and climate came into force on 31 May 2013. Book II came into force in full on 1 January 2015 (although some articles of this Book came into force on 5 February 2014).
