Too late at the notary

How we work

Why the order cannot be rearranged

A person transferring land in the Flemish Region must request a soil certificate from the competent regional waste authority and communicate its content to the acquirer before the transfer agreement is concluded. The words that do the work are before the transfer agreement. In an ordinary Belgian sale, the agreement is the compromise, signed weeks or months ahead of the notarial deed, and it is the moment at which the buyer commits. The notarial deed, which is where most people assume the paperwork lands, comes later and is not the relevant moment at all.

That is why the common failure is a sequencing failure rather than a missing document. A seller who assembles a perfectly good certificate in time for the notary has still not done what the obligation required, because the duty was to inform the acquirer before they bound themselves, and a certificate produced afterwards cannot retrospectively have informed anyone of anything. The consequence is not the administrative fine people might expect. The acquirer may seek annulment of the transfer, a remedy which undoes the transaction and which belongs to the party who was kept in the dark. A rule enforced by nullity rather than by penalty is a rule about protecting a decision, not about collecting revenue.

Where the land accommodates or has accommodated an activity classified as a risk activity, further obligations attach before a transfer can take place, including a preliminary soil investigation. Those are predictably the transactions where the temptation to sign first and investigate afterwards is strongest, since both parties are usually keen and the investigation takes real time. Signing on that basis converts a delay into an unwinding, which is a far worse outcome for everyone including the buyer. The remaining disclosures follow the same instinct of putting information before commitment rather than into the deed: the planning position, pre-emption rights where they apply, energy performance, asbestos documentation where a certificate is required, and whatever is known about condition and history, with unknowns stated as unknowns. And one thing stated rather than assumed: this company acts as principal and not as an estate agent, so the protections attaching to dealing with a registered agent do not apply here.