In Belgian law, patrimonial rights are divided into two categories: real rights (rights in rem) and personal rights (rights in personam).
In property law, rights in personam essentially originate from the relationship between landlord and tenant pursuant to a lease agreement.
There are four types of property lease under Belgian law: the standard (civil) lease, the retail lease (often misleadingly called “commercial lease”), the residential lease and the agricultural lease. Office leases are governed by the rules applicable to standard (civil) leases.
In contrast to rights in personam, there are a limited number of rights in rem. Under Belgian law, the following are considered real rights:
- Rights of usage
- Rights of residence
- Emphyteotic lease
- Right of superficies (also referred to as building right)
The most absolute right in rem is the right of ownership.
Real estate ownership entails all the rights and privileges afforded to the owner, which includes the right to use the property, the right to receive all revenues flowing from the property and the right to abuse the property (including its destruction), subject to restrictions imposed by any applicable laws and regulations and subject to sanctions arising pursuant to the rules of civil liability when the owner is either causing damage to others through his/her fault or, through no fault, is causing abnormal damage to neighbouring properties.
Pursuant to the principle of accession, ownership of land automatically brings with it ownership of all that is erected on it. Accession is therefore a method of acquiring ownership whereby the owner of a principal asset becomes the owner of all that is incorporated therein.
According to this principle, the owner of a plot of land automatically becomes the owner of any construction erected on the land, regardless of the identity of the person who erected the building and/or the ownership of the building materials, unless otherwise agreed with that person. It is possible for the owner to waive its right of accession. Such waiver results in the builder becoming owner of the building and is generally construed as giving rise to a right of superficies or an emphyteotic right (long lease) which, by law, are limited to 50 years (superficies) or 99 years (emphyteotic).
Rights in rem (other than the right of ownership) over property are from time to time created to grant a right of use over property. Usufruct, emphyteotic lease and the right of superficies are all examples of this. For the “lessee” they usually offer more stability than a mere lease. For the “lessor” they usually guarantee income over a long period of time.
Moreover, in certain circumstances, the acquisition of rights in rem can be considered as an alternative to a purchase. Rights in rem are usually granted for a very long period (up to 99 years), and procure extensive rights for their holder.
Transactions having the effect of transferring title to a real estate property or of creating a right in rem encumbering such a property may be recorded at the Mortgage Registrar Office. Registration is required in order to have a title enforceable against all third parties, who may take precedence in the absence registration (see section 12).