The Act of 10 January 1824 on the right of superficies (opstalrecht/droit de superficie) was recently amended, for the first time in almost 200 years, by the Act of 25 April 2014, which was published in the Belgian State Gazette on 14 May 2014 and entered into force on 24 May 2014. This amendment is particularly relevant for the solar panel sector.
Pursuant to the right of accession (recht van natrekking / droit d'accession), a general rule of Belgian civil law, the landowner acquires full title to buildings, constructions and plantings erected or added to the land.
An exception to the right of accession is the right of superficies, which is a right in rem, as opposed to a right in personam such as a lease.
Rights of superficies are governed by the Act of 10 January 1824, which predates the founding of Belgium. Pursuant to Article 1 of the Act of 10 January 1824, a right of superficies is defined as a right in rem to buildings, constructions and plantings on land owned by another.
For the duration of the right of superficies, the right holder owns:
- existing buildings, constructions and plantings; and
- buildings, constructions and plantings which it erects or makes on the land.
The temporary separation of title between, on the one hand, the land itself and, on the other hand, constructions and plantings on the land is the very essence of the right of superficies.
By law, a right of superficies may not last more than 50 years.
The former wording of Article 1 of the Act of 10 January 1824 ("the right of superficies is a right in rem to buildings, constructions and plantings on land owned by another") gave rise to a number of interpretative difficulties in practice. Indeed, it was unclear if:
- a right of superficies could be granted in order to allow constructions to an existing building, with no direct link to the land; and
- only the landowner could grant a right of superficies.
New Article 1, as amended by the Act of 25 April 2014, provides that a right of superficies can be granted:
- on, above or under the land (for example, to an existing building); and
- by any beneficiary of a right in rem relating to immovable property (e.g. a long lease, a right of usufruct or a right of superficies), within the limits of the underlying right in rem; in other words, the person granting the right of superficies need not necessarily be the owner of the land.
For example, a long-term lessee of an industrial plant can grant a right of superficies to a company in order to allow the latter to install solar panels on the roof of the plant. Pursuant to its right of superficies (which can be mortgaged), the solar panel company acquires full title to the solar panels. If the solar panels are financed by means of a real property lease, a right of superficies can also be granted to the leasing company.
The amended Act of 10 January 1824 also allows the landowner to grant a right of superficies for underground constructions, such as an underground parking garage.
Upon expiry of the right, title to the buildings, constructions and plantings reverts to the grantor or its legal successor (usually the landowner if the underlying right in rem was terminated earlier or ends at the same time as the right of superficies).