The bill on soil clean-up in the Flemish region provides several new formalities for the transfer of real estate, which can be described as follows (subject to possible amendments of the bill).

"Transfer of land", as defined by the bill, not only concerns the transfer of property, but also the vesting of long-term leases (more than nine years), as well as the mergers and split-ups of companies which own land. It should be noted that the acquisition of (a controlling part of) the shares in a company that owns land does not fall within the scope of the definition.

Before a plot of land is transferred, the transferrer must obtain from OVAM (the Flemish Public Waste Company) a "soil certificate" and inform the transferee of the contents of this certificate. The soil certificate will contain all the official information concerning the soil in question. This information will come from the public "Register of contaminated soils". If this Register does not contain any information concerning the condition of the soil, the certificate will indicate that no official information is available.

The contracts and notarial deeds concerning the transfer of land will have to indicate the contents of the soil certificate.

For the transfer of land comprised of certain categories of soils, additional formalities will be required. The Flemish Government will draw up a list of activities that are considered as soil contaminating. If such an activity is or was performed on the soil in question, the transferrer will have to call upon a recognised expert to perform a preliminary investigation into the condition of the soil, unless such an investigation has taken place within the two years preceding the transfer and the contaminating activity has not taken place since then. The results of this investigation will have to be communicated to OVAM, which will then decide whether a thorough "descriptive investigation" should be carried out.

If a descriptive investigation is ordered, the transferrer will be able to escape the execution of this order if he demonstrates to OVAM that he is "innocent". To be regarded as an innocent transferrer, three conditions will have to be met : (1) the transferrer has not caused the pollution ; (2) at the time of acquiring the property or control of the land, the transferrer was not aware or was not obliged to be aware of the pollution ; (3) there was no polluting activity on the land since January 1, 1993. The innocent transferrer may be obliged, however, to provide sufficient financial securities for the clean-up of the soil before he is allowed to transfer the land.

If the transferrer cannot demonstrate his "innocence", he will be liable for the execution of a "descriptive investigation". If the results of a descriptive investigation show that certain standards are not met, the transfer will only be allowed to take place when the following conditions have been met : (1) the transferrer has drafted a clean-up project ; (2) the transferrer has made an undertaking to clean up ; (3) the transferrer has provided sufficient financial securities for the execution of the clean-up.

The violation of any of the above-mentioned obligations will result in the nullity of the transfer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

For further information contact Patrick Peeters on + 32.2. 517.94.55.