Although the use of asbestos in construction materials has been prohibited since 1998, it is still present in many buildings. In Belgium, an asbestos certificate has been mandatory for employers since many years, pursuant to the Codex on Well-being at Work. This obligation has been broadened in Flanders under the Asbestos Decree (‘Asbestdecreet’) which the Flemish Parliament has approved on 29 March 2019 to speed up the removal of asbestos from buildings.
The Flemish asbestos inventory requirements have become effective on 23 November 2022. From this date on, the transferor of a right in rem in a property constructed before 2001 is required to provide the transferee – before entering into a transfer agreement – with an asbestos inventory certificate.
What is the scope of application?
The requirement of the asbestos inventory certificate applies:
- Whenever there is a transfer among living persons of the right of ownership, the establishment or transfer of a right of usufruct, leasehold, superficies, or a right of use in rem of a property. This means that the requirement not only applies to sales or donations of real estate, but also to transfers of real estate in connection with mergers, (partial) demergers, contributions of a branch of activity.
The expropriation or the inheritance of a property is not considered as a transfer and is therefore excluded from the application:
- To all types of properties, regardless of their use or occupants. Consequently, residential premises also fall within the scope of application.
How to obtain an asbestos inventory certificate?
An asbestos inventory certificate can be provided by an asbestos expert, who will perform an on-site inspection and afterwards register the report in the web application of OVAM (‘Openbare Vlaamse Afvalstoffenmaatschappij’), which is the Public Waste Agency in the region of Flanders
OVAM will issue a unique asbestos inventory certificate for each property, based on the report of the asbestos expert. This contains the ruling on the asbestos safety of the property, as well as advice on how to manage or remove the asbestos that is found.
What should be included in the notarial deed of transfer?
The notarial deed that establishes the modalities of the transfer of the property must mention the following information:
- the prior communication of the content (i.e. the delivery) of the asbestos inventory certificate to the acquirer;
- the date of the asbestos inventory certificate;
- the summarized conclusion of the asbestos inventory certificate;
- the unique code of the asbestos inventory certificate.
Are there any sanctions for not complying with the requirement?
The failure to comply with the abovementioned obligations may result in the nullity of the transfer. Considering that this is a ‘relative’ nullity, it can only be invoked by the acquirer of the property. Moreover, the acquirer of the property can no longer invoke this nullity if they expressly renounce the nullity claim in the notarial deed and if they have – at that time – received a valid asbestos inventory certificate.
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