What is the legal background?
In 2018, the Flemish government approved the asbestos removal action plan. The plan contains several measures to accelerate the removal of high-risk asbestos materials from buildings in the Flanders Region. Part of this action plan is the identification of the asbestos present in Flemish buildings built prior to 2001.
In this context, a new section on asbestos containing materials has been added to the Flemish Materials Decree of 23 December 2011 which imposes:
- a general obligation for owners to be in possession of a valid asbestos certificate prior to 31 December 2031; and
- an information obligation in the framework of certain transactions as from 23 November 2022.
For which buildings?
An asbestos certificate is required for buildings which are accessible and built before 2001. “Accessible buildings” are defined as buildings with a roof in which a person can stand or walk normally. This captures most buildings (warehouses, offices, government buildings, religious buildings, etc), but also shelters, carports, sheds, etc. The following buildings are expressly excluded:
- buildings which have an aggregate surface of less than 20m²;
- public underground infrastructure intended for the transit, transport, transmission or distribution of solid, liquid or gas substances, energy or information; and
- technical works in the sense of the “Grootschalig Referentiebestand” and line infrastructure in the sense of the Flemish Urban Planning Code).
The construction year mentioned in the land registry information (kadaster/cadastre) is the prime source of information that will be used to assess whether a building was built before or after 1 January 2021. If this information is not available, certain documents related to the works can be used to establish the construction year of a building.
As of when do I need to comply?
The obligation applies as of 23 November 2022. No asbestos certificate will be required for private sales agreements that were signed before 23 November 2022 even if the deed authenticating such private sales agreements is signed after 23 November 2022.
For which transfers?
“Transfer” must be understood broadly. It is triggered by the transfer of all rights in rem (full ownership, usufruct, long lease, etc.). The asbestos certificate is also required in case of a contribution in kind into a company or of a merger or demerger provided that property is transferred in this context.
It is not required in case of expropriations and transfers by inheritance.
There is also no obligation to have an asbestos certificate for lease agreements, it being understood that if the certificate is available it must be communicated to the tenant.
What are the specific obligations?
Both the private sales agreement and authentic deed of transfer must mention whether the asbestos certificate has been delivered to the transferee prior to the transfer. The conclusion and the unique code mentioned on the asbestos certificate must be included in the private sales agreement and the deed. According to Public Waste Agency of Flanders (OVAM) the asbestos certificate will also be required when a reciprocal option agreement to transfer is signed.
How do I obtain an asbestos certificate?
An asbestos certificate is obtained after an asbestos inventory is drawn up by a certified asbestos expert. A list of certified experts can be found here.
Based on this inventory, the OVAM prepares an asbestos certificate, which is unique for each property. The asbestos certificate contains information on the asbestos safety of the property, as well as advice on how to manage or remove any asbestos found.
I am not transferring my building, so I am off the hook?
Yes, at least until 31 December 2031. As of 1 January 2032 each owner of an accessible building built prior to 2001 will need to have a valid asbestos certificate for his building.
The transferee will destroy the building after the transfer and a mandatory destructive asbestos inventory will in any case need to be drawn-up as part of the demolition. Can I obtain a waiver of the asbestos certificate for the transfer?
What are the consequences if I do not comply?
In case of non-compliance with the transfer obligations, the transferee can seek the nullity of the transfer. The transferee can however waive its right to claim the nullity of the transfer in the authentic transfer deed provided the asbestos certificate is available at that time.
This article does not answer all my questions. What should I do?
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