THE PRE-CONTRACTUAL INFORMATION AND THE SOIL DECREE
The importance of correct information before the selling agreement
The pre-contractual information and the soil decree.
1. Our law strictly regulates agreements for the transfer of real estate. This is logical given its impact on the assets of both contracting parties.
If you wish to sell a property, you must obtain certain information in advance and include it in the private sales agreement in order for it to be legal. This includes a soil certificate (OVAM certificate), information regarding the urban development extract from the plans and permit register, a certificate of legal inspection of the electrical installation and an EPC certificate.
2. Judgments can be found in case law in which it was decided that the sale was null and void because the private deed of sale failed to state the urban development purpose of the real estate. Even if the property is located in a residential zone, it is still necessary to state that it is building land. After all, it is possible that a certain piece of the land is agricultural land and therefore cannot be built on it. This information is essential for a potential buyer. This information can be found on the extract from the plan register that contains the most recent urban development purpose of this property and which must be included in the sales agreement (Art. 5.2.5. Flemish codex spatial planning).
Moreover, the Court of Appeal in Antwerp of 3 December 2007 decided that this obligation was considered to affect the public order, so that the parties cannot even renounce it. However, in the judgment of the Court of Cassation of 3 November 2011, it was ruled that the nullity is of a relative nature.
Agreements that came about with disregard of the pre-contractual information obligations from the Soil Remediation and Protection Decree, in particular the failure to mention the soil certificate and its content in the agreement (Art. 101 Soil Remediation and Protection Decree) already gave rise to nullity.
3. The question arises, whether the right to request the nullity of an agreement that has been concluded in disregard of the pre-contractual information obligations is also unconditional (in other words, can this be raised in any assumption?). From a judgment of the Court of Cassation of 24 June 2010 with regard to the Soil Remediation and Protection Decree, it is deduced that invoking the nullity cannot be regarded as an abuse of law in certain circumstances.
On the other hand, the question also arises whether the buyer can renounce the option to invoke the nullity (later)? Article 116 of the Soil Remediation and Protection Decree explicitly provides that nullity due to the lack of the soil certificate can no longer be invoked if the acquirer has been in possession of the most recently issued soil certificate (or of a soil certificate of which the content is identical to the content of the most recently soil certificate) and the acquirer has explicitly established the austerity of the invalidity claim in an authentic deed.
However, in the judgment of the Court of Cassation of 25 March 2011, the Court rejected the appeal in cassation that stated that the austerity of the invalidity claim must be explicitly established in an authentic deed, and thus decided that the austerity outside the case and form of Article 116 of the Soil Decree is not excluded. A confirmation could therefore also take place tacitly.
4. However, it is clear that pre-contractual information requirements are more than just formalities and are rigorously assessed. After all, failure to comply may result in the nullity of the entire agreement.