In principle, purchase agreements come into being form-free. However, in the sale of immovable property, this is deviated from in the vast majority of cases. Thus, parties often stipulate that the contract only arises after the signing of a document, such as the compromise or private sale deed.
Moreover, the sales contract can only be valid if the buyer has received a number of mandatory information in advance and no pre-emption right has been disregarded.
Soil attestation and urban planning information
Before concluding the purchase agreement, the buyer must know whether the property he will buy is contaminated or not. Therefore, the seller should request a soil certificate from the Public Waste Agency (OVAM) and inform the potential buyer beforehand.
This (important) formality cannot be circumvented by simply stipulating that the contract is concluded under the condition precedent of receiving the soil certificate. In that case, the buyer would also be bound if the soil certificate later showed that the property was polluted. However, it is possible to conclude a sale under the condition precedent of a "blank" soil certificate.
For the same reason, the soil certificate should already be available when a promise to buy is signed. Indeed, although the actual purchase is not yet concluded at that point, the potential buyer already irrevocably commits to buying the property.
In addition, the buyer must be informed in advance about the most recent urban planning destination of the property, any permits issued, possible building violations and the existence of a pre-emption right. Therefore, the seller should also request the urban planning information from the municipality in advance and bring it to the buyer's attention.
Preemption
A pre-emption right is the right of a particular (legal) person/entity to purchase a particular property on a priority basis. Preemption rights may have their basis in a contract or in law (see also on this subject: https://vsadvocaten.be/kan-een-voorkooprecht-worden-uitgeoefend-onder-voorbehoud/).
The seller who wishes to sell to a third party on certain terms must first give the beneficiary of the pre-emption right the opportunity to purchase the property on those terms.
Only if the beneficiary does not want to purchase the property on these terms, the seller may sell it to the third party on those terms.
Sanction
If the seller fails to deliver the soil certificate to the buyer, the latter can claim the nullity of the purchase agreement based on Article 116 of the Soil Decree. The Ghent Court of Appeal ruled that this is also the case if the planning information was not provided.
If the pre-emption right was disregarded, this may also give rise to the nullity of the purchase agreement in certain cases. Thus, the beneficiary of the pre-emption right will be able to claim nullity if he can prove that the buyer had knowledge of the pre-emption right in question. For example, if the contractual pre-emption right is transferred to the register of the General Administration of Patrimony Documentation or the urban planning information mentions a legal pre-emption right, the buyer will not be able to pretend that he had no knowledge of it.
The nullity of the contract has the effect that it is deemed never to have existed. This means that the buyer and seller respectively have to return the property and the purchase price to each other.
Van Steenbrugge Advocaten will be happy to answer your questions on the validity of a purchase agreement.
