Selling or buying without an asbestos certificate. What now?
Blog
5 June 2024
The buyer of a property, built before 2001 and located in Flanders, must be provided with an asbestos certificate at the latest when signing the compromise. What if you as a buyer have not yet received this certificate? And as the seller, can you insist on signing while waiting for the required asbestos certificate? We will explain it for you.
When is an asbestos attestation obligatory?
Since November 23, 2022, there is an obligation for owners to provide a valid asbestos attestation when “transferring or establishing a right of ownership or right of use in rem relating to accessible structures built before 2001.”
Such an asbestos certificate can be obtained through OVAM (the Public Waste Agency of Flanders) and contains information about the presence of asbestos in your building (e.g., which materials or building components contain asbestos, what the condition of the asbestos is, whether the building is “asbestos-safe,” etc.) and the recommended method of safe management or removal.
An asbestos certificate is also required for the transfer or establishment of other rights of use in rem (e.g., a right of usufruct, leasehold or superficies). The same applies to other forms of transfer (e.g., donation or contribution to a business).
What is new is that since May of this year, the transfer or establishment of rights on properties in a forced co-ownership (e.g. apartments) will also require an asbestos certificate to be drawn up with relation to the common parts, and not only with regard to the privative.
What is the purpose of the asbestos attestation?
The objective of the asbestos certificate is to inform the prospective buyer in advance of the presence of asbestos and the associated risks. This protects the buyer against unknowingly purchasing a property in which asbestos is present.
The content of the asbestos certificate must therefore be communicated to the prospective buyer “at the latest at the conclusion of a private deed or transfer agreement.” After all, this is the moment when the prospective buyer makes a definitive commitment to the seller.
In practice, this is often when the compromise is signed, although other situations are also conceivable (e.g., when the parties work with purchase and/or sale options).
If the seller does not submit the asbestos certificate in time, the consequences are severe. The buyer will be able to invoke the nullity of the sale or purchase and thus renounce it (free of charge). The seller can only avoid this nullity if the buyer receives a valid certificate before the notarial deed is executed and explicitly waives his nullity claim in this deed.
Suspensive condition of obtaining necessary asbestos certificate
With the 2nd anniversary of the mandatory asbestos certificate looming, owners in practice still appear to be having difficulty obtaining the required asbestos certificate on time. This is despite the significant increase in the number of recognized asbestos experts.
Both buyers and sellers therefore regularly ask for the compromise to be concluded under the “suspensive condition of obtaining the necessary asbestos certificate”. In this way, the parties hope to avoid a delay in the conclusion of the contract and to already tie the sale to the agreed conditions.
The case law on this subject is still developing. However, it is already the case that this possibility is fundamentally excluded by OVAM, or at least strongly restricted.
Based on OVAM’s position, only the condition precedent of obtaining an asbestos certificate with the result “asbestos-free” can be validly included in the compromise. After all, the buyer can (in line with the objective of the asbestos regulations) only be held to purchase if the property sold is completely asbestos-free.
More generally formulated suspensive conditions (such as the condition of obtaining “an” asbestos certificate) or conditions linked to a different result (such as obtaining an asbestos certificate with result “asbestos safe” or “not asbestos safe”) will probably be considered invalid.
It is to be expected that the OVAM or the Flemish decree maker will provide further clarification on the validity of such suspensive conditions in the future. In the meantime, it is essential that you – both as buyer and seller – exercise the necessary caution. You can always count on the experts of DGDM, who closely follow developments in legal practice.
The holy trinity – Asbestos certificate, town planning information and soil certificate
The asbestos certificate is not the only document that the seller must submit to the buyer prior to the transfer of a property, under penalty of nullity.
In practice, the absence of, for example, town planning information or a soil certificate often results in the annulment of a signed compromise.
Even before this mandatory documentation, case law already severely limited the possibilities of providing suspensive conditions.
When buying or selling your property, are you worried about obtaining your asbestos certificate, town planning information or soil certificate on time?
