The asbestos certificate - What do you need to know?
30/11/22
The Government of Flanders has made it a priority to make Flanders asbestos safe by 2040. Earlier this year, on 1 April 2022, the Minister for Environment, Zuhal Demir, signed the three ministerial decisions to launch the asbestos certificate: the Asbestos Inventory Inspection Protocol, the Asbestos Certification Regulation and the Fee Regulation which went in effect as of last week, 23 November 2022. The asbestos certificate is compulsory in the event of a property transfer of real estate located in Flanders built before 2001. The certificate is issued by the Public Waste Agency of Flanders (Openbare Afvalstoffenmaatschappij voor het Vlaams Gewest - OVAM).
The asbestos certificate is a significant new obligation in real estate transactions. Therefore, there are plenty of reasons to discuss the highlights of the Flemish asbestos policy and the obligations regarding the asbestos certificate in this Newsflash.
Context of the regulation
The aforementioned Flemish regulations on asbestos are the result of the asbestos policy which was drafted in 2018. By implementing the Flemish ‘Asbestos Abatement Action Plan’, the Government of Flanders aims to create an asbestos-safe environment by 2040. When transferring property, owners are now required to compile an asbestos inventory for buildings built before 2001. This asbestos inventory will be indicated on the ‘asbestos certificate’.
With the certificate and the inventory, the Government of Flanders hopes to gain insight into the amount of ‘non-destructive asbestos’ (observable sources of asbestos that may pose a risk in the daily use of buildings) throughout Flanders.
The asbestos certificate – what, when, where?
The new regulations require building owners to provide an asbestos certificate to prospective acquirers, as part of a property transfer of buildings constructed before 2001. According to the asbestos regulations, a property transfer includes following transactions:
transfer of ownership (sale, donation or exchange)
the establishment or transfer of usufruct, surface rights and long lease agreements or other rights in rem
mergers, divisions or equivalent acts of a legal entity involving a transfer of ownership or other rights in rem
contribution of universality or branch of activities linked to a right in rem.
Expropriation and inheritance are excluded from the scope of the asbestos regulations.
The owner of the soon-to-be transferred building must appoint an asbestos expert to compile an inventory of the asbestos present in the building (see the OVAM website for a list of certified asbestos experts). Alternatively, the owner can give a notary, estate agent or property manager a mandate to obtain the asbestos certificate. In that case, the mandated person will appoint the asbestos expert. During the investigation of the property, asbestos experts can take samples to determine if there is asbestos present and whether it is ‘destructive’.
The inventory and associated asbestos report are to be sent to OVAM who will issue an asbestos certificate for the building. This certificate is valid for ten years or until a new asbestos certificate is issued. The certificate contains information on (i) which part of the building contains asbestos, (ii) the condition of the asbestos and (iii) how it can safely be managed or removed.
The Government of Flanders aims to compile an asbestos inventory for all buildings constructed before 2001 by 2032. All of the asbestos certificates will be held in a database issued and managed by OVAM.
Disclosure requirement
Property owners must obtain the asbestos certificate for the property (built before 2001) before the buyer can make the acquisition. The private agreement or the ‘agreement setting out the terms and conditions of the transfer of an accessible construction with risk construction year’ should mention if the asbestos certificate has been provided to the future acquirer. The latter agreement has only recently been added to the legislation and is susceptible to wide interpretation. The definition seems to include any agreement containing terms and conditions of a real estate transfer, even a mutual buy-sell promise.
In addition, notaries are required to include information on whether a valid asbestos certificate has been made available to the acquirer, as well as the date, summary conclusion and unique code of that certificate in the authentic deed. Once the deed has been executed, it is mandatory to register the new owners in the OVAM database.
When the acquirer of the property has not been provided with a valid asbestos certificate, the transfer may be declared null. The declaration of nullity must be sought by the acquirer and it is up to the court to determine the nullity.
Contrary to a soil certificate, the presence of asbestos listed on a certificate does not oblige the seller to remediate/remove the asbestos. When transferring land at risk of contaminated soil, additional obligations may follow from the soil certificate, such as further research into the contamination in a descriptive soil survey or remediation of the soil in a soil remediation project. The asbestos certificate does not go that far. The asbestos regulations only introduce the obligation for the seller of the property to provide information, without other more far-reaching obligations.
An asbestos certificate is also required for corporate restructuring!
Companies that are envisaging corporate restructuring such as a (simplified) merger, a (partial) demerger, a contribution/transfer of a branch of activities or a contribution/transfer of universality in which the acquired/transferring company owns a property located in Flanders built before 2001, are also affected by the new legislation.
An asbestos certificate is required for joint (de)merger or contribution proposals signed and filed as of 23 November 2022. For (de)mergers or contributions to be completed by 31 December 2022 and for which the joint (de)merger of contribution proposal was signed and filed prior to 23 November 2022, no asbestos certificate will be required, according to the FAQ issued by OVAM, even if the notarial (de)merger or contribution deed is executed after 23 November 2022.
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As of 23 November 2022, an asbestos certificate is required when selling or transferring properties built before 2001. By 2032, every building owner must have an asbestos certificate. The asbestos certificate is to be provided to the potential acquirer before the property transfer and should be mentioned in every agreement and/or deed establishing the sale. This is a new obligation and it should be addressed in a timely manner.
If you have any questions or queries, please contact your regular contact at PwC Legal, a member of the public law team or the M&A department of PwC Legal.
