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#Tax & Legal #Business & International Tax #Property #Usufruct

Uniformity principle in usufruct arrangements ends years of discussion

Monday 25/10/2021
Het eenheidsbeginsel bij vruchtgebruikconstructies

A new property law came into force on 1 September 2021. One of the principles enshrined in the law is the uniformity principle. It puts an end to years of discussion.

What was the discussion about?

Is a prior basic deed required for the establishment of usufruct on part of a property? This question was frequently the subject of discussion when the old property legislation was in force.

The discussion concerned the application of apartment ownership rights if the division of the rights to a building - divided into private lots and common immovable components – does not relate to full ownership, but (solely) to another right in rem, such as usufruct.

Divided opinions

  • There is no division of the right of ownership and the apartment right only applies in the event of a division of the right of ownership between the various private lots.
  • The establishment of a right in rem more restricted than the right of ownership depends upon the individual legal status of the private lot in question. A separate status requires a basic deed which severs the ordinary joint ownership of the apartment building and divides it into private plots.

In 2005, the Committee for Study and Legislation of the Royal Federation of Belgian Notaries issued a statement concerning this issue. It opposed the compulsory application of apartment rights when establishing usufruct on part of a property.

Uniformity principle brings clarity

The new legislation puts an end to this ongoing discussion by enshrining a so-called 'uniformity principle'.

An inherent constituent of a property is a necessary element of it, which cannot be separated from it without compromising the physical or functional substance of the property.

It is not possible, therefore, to apply an individual right in rem on an inherent part of a property. In other words, it will henceforth be prohibited to apply a separate property right to part of a property.

As to the question whether a basic deed is required and the apartment rules apply when an apartment in a building is given in usufruct, the answer will henceforth be positive. This will even be the case if the same person retains ownership of the entire building.

No contractual deviation, only legal exceptions

Any contractual deviation from this property right uniformity principle shall not be acceptable. However, there are some statutory exceptions, which mainly concern leasehold arrangements, joint ownership (e.g. shared walls), early movable asset stipulation or the continued existence of a registered right of pledge.

And arrangements in existence before 1 September?

Usufruct arrangements drawn up before 1 September are generally still governed by the old rules of the Civil Code, which do not yet incorporate the uniformity principle. However, it is possible to apply the new law to existing usufruct arrangements by means of an addendum to the original agreement or deed.

Do you have further questions or would you like advice concerning a new or existing usufruct arrangement? Please feel free to contact us as we would be happy to assist.

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Dimitri Lemeire

Dimitri Lemaire

Director Tax & Legal Services

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Tom De Clercq

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