Gepubliceerd op 12/05/2025
The Act of 4 February 2020 repealed the (at that time almost 2OO years old) Opstal Act of 1824 and implemented it in the new Book 3 of the Civil Code (Article 3.177 et seq. new Civil Code).
Without prejudice to the “ancient” origins of the legal figure, its application has gained popularity in recent decades.
In addition to a tax-efficient construction, the legal figure also offers advantages in the case of project development.
Project development classically brings together different actors, such as the landowner and contractor / construction promoter (and possibly an external financier).
Here, it may be useful to make a split between the ownership of the land and the building volumes to be built on the land (also called the structures).
This construction is often used in the case of housing development under the Breyne Act (housing law or sale on plan for short).
Often a split takes place between the so-called “land bank” of the construction promoter and the construction promoter itself.
Not infrequently, a third party will proceed to build the structures and the construction promoter will commercialise the project.
The intention of the parties is to place the commercial risk on the promoter who – should the structures not finally be sold – will have to bear the financial consequences.
For this reason, it is important to stipulate -at the end of the building rights- an option to buy and sell in favour of the landowner.
Even during the sales process, the construction promoter and the landowner are tied to each other. The construction promoter who -as mentioned- undertakes the commercial activities will often be granted an irrevocable power of attorney to also sell the land shares.
Upon further purchase by the buyer, the ownership of the encumbrances and the ownership of the land, will be united in one hand, ending the split.
Are you a construction promoter? Do you own land and want to commercialise it (or have it commercialised)? Or are you a buyer? Then do not hesitate to contact us in case of further questions.
