Legal
30 January 2024

Obligations on asbestos certificate and EPC when transferring or renting out a property

by Stephanie Dupont and Charlotte Humblet

With 153,300 certificates issued in the first year of the obligation, the asbestos certificate is gradually becoming established alongside the Energy Performance Certificate (EPC). However, there have been a number of changes to the scope of the legislation. In order to give you an up-to-date picture of the information requirements when transferring or renting out a property, we would like to explain these changes.

The asbestos certificate

When to provide it

As of 23 November 2022, if you are the owner of a property built before 2001, you must provide an asbestos certificate in the event of a transfer. This applies to 'transfers among living persons' in the broadest sense of the word and is therefore not limited to a simple sale. An asbestos certificate is also required when creating or transferring rights in rem such as usufruct, ground lease, building lease and a right of use in rem.

The legislator also requires an asbestos certificate in the case of mergers, demergers or contributions to a company. This presupposes that the property in question changes ownership or the holder of the right in rem. The reason for this requirement is to ensure that the new owner is duly informed.

Exceptions

Nevertheless, a number of transactions are explicitly excluded from the aforementioned obligation. The inheritance, usufruct after death, the purchase or sale of shares (of a company owning real estate (= share deal) or bonds, the concession or expropriation do not qualify as a 'transfer among living persons' and thus fall outside the scope.

Renting out a property

There is currently no requirement to have an asbestos certificate when renting out a property. However, if an asbestos certificate is available, the landlord is legally obliged to give it to the tenant.

Future measures

Flanders wants to be asbestos-free by 2040. This objective means that the obligation to have an asbestos certificate will be considerably extended in the future. From 2032, every owner of a property built before 2001 will have to have an asbestos certificate. Currently, the rules only apply to transfers.

Read more under the image.

The asbestos certificate

The EPC certificate

Although the EPC obligation was introduced in 2008, the regulations have undergone some significant changes in terms of their scope. The amending act of 16 June 2023 provides more uniformity with the rules governing the renovation obligation.

Transfer or creation

Today, an EPC must be provided for the transfer of full ownership and for the creation or transfer of a ground lease or building lease. Previously, it only applied to the creation of these rights in rem. On the other hand, there is still no requirement for an EPC when a ground lease or building lease is extended.

In addition, no EPC is required for building rights on a roof for solar panels or transmission masts.

The situation is different for usufruct rights. We note that both the creation and transfer of usufruct rights are not subject to the EPC requirement. The usufructuary does appear in other capacities in the legislation. For example, the usufructuary must be able to provide an EPC when renting out a property as a usufructuary.

Renting out a property

Since Oct. 1, 2023, an EPC must also be provided for rentals without publicity, whereas previously it was only required for rentals with publicity.

Companies

For companies, it should be noted that, for example, office buildings on an industrial site require a non-residential EPC, whereas warehouses and logistics halls do not. For mixed use, e.g. a warehouse with offices, a non-residential EPC is required if these offices occupy more than 30% of the total floor area.

There is also an explicit exemption for mergers, demergers, takeovers or share deals. Where mergers and demergers fall within the scope of the asbestos regulations, an EPC should not be provided in these cases.

This parallels the exemptions that apply to the renovation obligation.

Non-residential building units smaller than 50m², such as fixed food stalls or newspaper kiosks, remain exempt, although there is some ambiguity in the legislation.

Future measures

Similar to the asbestos legislation, the EPC obligation will be decoupled from transfers. From 1 January 2026, all large non-residential buildings will be required to have an EPC, regardless of whether they are transferred or not. The target criterion from then on will be the mere ownership of the aforementioned buildings.

It is clear from the above-mentioned gradual extension of these information obligations that Flanders is indeed committed to providing information and raising awareness about energy specifically for real estate.

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Stephanie Dupont

Charlotte Humblet

Disclaimer
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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