Hidden charges and overriding interests

The person acquiring a property right in the land has to rely on the expert—the real estate agent and/or the notary—to gather all the information concerning the plot of land and thus provide a clear and precise picture of what rights having proprietary effect will indeed stick to the land.

In this quest for information the Land Registry is only one of the many sources of information. Information concerning the plot of land is available in the documentation of the other branches of Patrimonial Documentation—the Cadastre and the Registration & Succession Taxes, in the documentation of the local authority, in the documentation of several national and/or regional authorities, …

We feel unable to present an exhaustive list of the charges that could have proprietary effect.

Some potentially hidden charges stem from the classical land law, e.g. adverse possession, easements, mortgages, liens, … Other charges are hidden in other branches of the law: planning law and environmental law, housing law (e.g. the quality of the house in certain respects must be certified before it may be sold), tax law (e.g. in certain circumstances the taxes due by the previous owner are to be paid by the buyer), … Some of these legal rules are regional or local rules and so differ according to the location of the plot of land.

Moreover, the Belgian Land Registry operates a deed registration system, not a title registration system. As a general rule, only an agreement inter vivos creating or transferring a proprietary charge recorded in a deed (i.e. an authentic act) can be registered in the land register.

Having said that, most of the charges mentioned in the (non-)questionnaire exist in Belgian law:

• A lease of nine years or more must be entered in the land register. A lease of less than nine years has proprietary effect if it is registered in the Registration/ Succession Tax Office.
• An usufruct is normally not entered in the land register: as a quod plerumque fit, the usufruct is constituted at the death of the husband and inherited by the widow—the naked ownership is inherited by the children—and transfers of property rights by way of succession are not entered in the land register. Information can be gathered at the Registration/Succession Tax Office.
• Other civil law charges follow from certain events, e.g. there has been a gift and clawback operates, the owner becomes insolvent, the adverse possessor claims the ownership through acquisitive prescription, … In order to detect these charges, one has to find out if a triggering event has happened and if the conditions for the consequences to follow are fulfilled (e.g. the conditions for acquisitive prescription concerning the quality of the adverse possession and the number of years of the prescription period). As a general rule, it is advised to start the examination of these kinds of events at the Registration/Succession Tax Office.
• As a general rule, the public law charges depend on the nature and/or the location of the plot of land: e.g. in certain areas there is a pre-emption right, a strip of land is used as a footpath, … As a general rule, the local authority is the indicated place to start the quest for these kinds of hidden charges. One could also surf to the website of the Flemish regional authority to see on the map if a plot of land is situated in a zone where a pre-emption right operates or where there is an increased risk of flood.
• A rather particular hidden charge is the occult mortgage in matters of succession: a mortgage could be registered on the estate of the deceased until 18 months after his or her death: during those 18 months the mortgage potentially exists but does not appear in the land register.

As a general rule, it is not possible to free the property of the hidden charges: these hidden charges have proprietary effect, they stick to the property.