Real Estate in the draft Book 7 of the Civil Code
28 May 2025
The law proposal introducing a new Book 7 in the Belgian Civil Code was submitted to Parliament on 20 February 2025. The proposal brings significant changes to various aspects of special contracts, with a direct impact on real estate contracts such as sales and lease agreements. These changes aim to modernise and clarify the existing legal framework, ensuring better protection and clearer obligations for all parties involved. The provisions of Book 7 are generally suppletive, meaning that parties may derogate from them.
We have summarised some of the most notable changes in this proposal (hereafter referred to as Book 7).
I. Transfer of ownership and risks
The new Book 7 of the Belgian Civil Code brings notable changes to the rules governing the transfer of ownership and risks in agreements transferring ownership (such as sales contracts). Under current legislation, the transfer of ownership – which occurs by the mere exchange of consents, unless otherwise agreed – entails the transfer of risks. Under the new Book 7, the transfer of ownership does not automatically entail the transfer of risks. Risks are transferred only at the time of delivery of the property, which may be effected by physical, symbolic or intellectual handover.
As a result, if the property perishes due to force majeure before delivery, the purchaser cannot demand delivery of the property and is correspondingly released from the obligation to pay the price.
The practical impact of this change in asset deals is however limited, as it is common practice for the transfer of ownership to occur only upon execution of the authentic deed, which is also (in principle) the moment of delivery.
II. Delivery fees (frais de délivrance) in sales agreements
Book 7 explicitly clarifies the allocation of delivery fees in a sale. According to the updated Article 7.2.28, the costs associated with delivery of the good are borne by the seller. This includes the costs of making the good available for delivery, such as legal searches and the provision of necessary certificates or documents required by law. This clarification ensures that buyers are not unexpectedly burdened with additional costs that should be borne by the seller.
III. Conformity and hidden defects in a sale
The new Book 7 abolishes the dual regime of liability for apparent and hidden defects in sales.
Under the current legal framework, the seller must guarantee the purchaser against defects of conformity (the obligation to deliver a conforming good) and hidden defects (the obligation to guarantee against hidden defects). A hidden defect is a flaw affecting the composition or structure of the item sold, whereas a lack of conformity arises when the item does not correspond to what was stipulated in the contract. These two guarantees have their own legal regime, scope and conditions of application.
Under Book 7, both types of defects now fall under the obligation to deliver a conforming good, in accordance with the contractual provisions and the reasonable expectations of the purchaser (assessed in light of the law, the contract, customs, good faith, the nature of the item sold, the quality of the purchaser, etc.).
The guarantee of conformity is limited to defects appearing within 10 years from delivery.
The burden of proof that the item was not conforming at the time of delivery lies with the purchaser, who must notify the seller of the defect within a reasonable period from the moment the defect was discovered or should have been discovered. The purchaser then has a period of two years to initiate legal proceedings against the seller. Book 7 specifies that this period is suspended during serious negotiations between the parties, a judicial expert assessment or a contradictory extra-judicial expert assessment.
This unified approach simplifies the legal framework and provides a clear timeline for the seller’s liability.
It should be noted that specific rules apply to sales to consumers and other specific agreements.
IV. Guarantee against hidden defects for manufacturers and specialised sellers
The new Book 7 introduces a significant change regarding the possibility for manufacturers and specialised sellers (based on their degree of specialisation and technical competence – a professional seller is not necessarily a specialised seller) to exempt themselves from liability for hidden defects. This is particularly relevant for real estate sale agreements entered into by developers who could be considered specialised sellers.
Under the current legal framework, there was a presumption of bad faith for manufacturers and specialised sellers, making it virtually impossible for them to invoke an exemption from the guarantee.
Under the new regime, manufacturers and specialised sellers can, in principle, exempt themselves from liability for hidden defects in sales to businesses (B2B). However, this exemption does not apply to sales to consumers (B2C). This distinction aims to balance the interests of professional sellers and consumer protection, ensuring that consumers retain strong protections against defective products.
V. Lease agreements
The proposed changes to lease agreements under the new Book 7 focus on modernising and clarifying existing rules. The definition of a lease is updated to include the temporary provision of use and enjoyment of a good for a price. The concept of precarious occupation is also codified, allowing for temporary use without constituting a lease. However, the law requires specific legitimate circumstances to use the mechanism of precarious occupation.
The landlord’s obligation to deliver a conforming leased property is also clarified and aligned with other special contracts in Book 7. The conformity obligation applies both at the time of delivery and throughout the duration of the lease. Therefore, the landlord must carry out the necessary repairs to maintain the leased property in conformity, subject to the tenant’s maintenance obligations. Similarly to sales contracts, the tenant must notify the landlord of a lack of conformity within a reasonable period from its discovery. Failure to notify the landlord within this period limits the tenant’s right to claim compensation for loss of use or enjoyment already suffered, but the tenant can still demand future compliance.
In addition, tenants are now expressly allowed to make removable improvements without the landlord’s consent, provided these are consistent with the property’s intended use.
Finally, Book 7 also clarifies the tenant’s right to compensation for improvements based on unjust enrichment principles (depending on whether these improvements were authorised or not according to the lease agreement).
VI. Unforeseen circumstances (sujétions imprévues) in service contracts
The new Book 7 codifies the theory of unforeseen circumstances (sujétions imprévues) in service contracts with fixed prices. Article 7.4.8 stipulates that a service provider cannot claim additional compensation if the service requires more work or expenses than initially anticipated. However, an exception allows for contract adaptation or termination if performance becomes excessively onerous due to unforeseen circumstances existing at the time of contract conclusion but unknown to the parties.
This provision resembles, but differs from, Article 5.74 of the Civil Code (the hardship theory), which addresses unforeseen circumstances for contracts in general, where such circumstances must arise during the performance of the contract and not exist at the time of its conclusion.
Both articles require that the unforeseen circumstances make the contract’s performance excessively burdensome, warranting renegotiation or judicial intervention. The parliamentary works clarify that the codification of sujétions imprévues does not preclude the application of Article 5.74, ensuring that service providers can still invoke the latter when appropriate.
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