by Manon Van Huffelen
In order to make Flanders asbestos-free by 2040, an asbestos report will become a requirement for any transfer of real property built before 2001 with a footprint equal to or exceeding 20 m2 from 23 November 2022. Additionally, all owners of properties built before 2001 must have obtained such a report by 31 December 2031. This article explains the implications in more detail.
It is important to realise that a “transfer” refers to the transfer of any commercial property right, not just to the classic public sale or gift. An owner will be required to obtain an asbestos report for any transfer or assignment of a right of usufruct, a right under a long-term lease, a building lease or a right of use in rem. Only cases of inheritance or dispossession are not considered “transfers”.
Thanks to the definition’s expansive nature, mergers and divisions involving transfers of real property to a different legal entity are subject to the same obligation. In the event of a merger, always consider carefully whether any real property is being transferred. Does the property already belong to the acquiring company? In that case, there is no transfer involved and no asbestos report will be required. If the property is brought into the company, this counts as a transfer and will necessitate an asbestos report.
Are you the owner of a private portion of an apartment building? Don’t forget the asbestos report for communal areas. In cases of co-ownership, the surveyor will need to draw up separate reports for private and communal areas. Asbestos reports for common areas won’t become mandatory until 1 May 2025.
If you are the landlord and owner of a property built before 2001, you also won’t need an asbestos report until 2032. However, landlords already in possession of an asbestos report before this date must provide tenants with a copy of this report at the start of their tenancy.
An owner who assigns a building lease with an eye to installing solar panels, an overlay roof or billboard must also obtain an asbestos report. Interestingly, despite the fact that an asbestos report does not imply any removal obligation, the Flemish Decree does forbid mounting such installations on roofs or facades that contain asbestos or if this could cause damage to underlying asbestos-containing materials.
An asbestos report is the record of the results of an asbestos survey. A certified asbestos surveyor will identify the locations, condition and amounts of asbestos-containing materials and assess the property’s level of asbestos risk. The owner has an important role to play here as well. It isn’t enough to provide the surveyor with access to the property. The owner is also expected to actively point out locations known or likely to contain asbestos. The Public Waste Agency of Flanders (OVAM) will subsequently record the survey results in an asbestos report. A list of certified surveyors may be found on the OVAM website.
The content of the asbestos report must be made available to the acquirer candidate on signing of the provisional agreement under penalty of nullity of the contract. Is a merger or division involved? Analogously, the asbestos report must be made available at the time of signing the draft terms of division or merger at the very latest.
An asbestos report is valid for ten years following the date on the report. The surveyor may also assign a shorter validity period. If the situation changes, due to a discovery of further asbestos-containing materials for example, the owner must request a new report within one year of this being detected.
The costs of an asbestos survey can vary between 300 and 500 euros. The OVAM charges a fee of 50 euros for the provision of the actual report.
Any further questions regarding the asbestos report? Contact our experts at firstname.lastname@example.org.
In our opinions, we rely on current legislation, interpretations and legal doctrine. This does not prevent the administration from disputing them or from changing existing interpretations.
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