Foreigners who wish to acquire a property in Belgium should be careful.
On the basis of article 1583 of the Belgian Civil Code, when a purchaser makes an offer to buy a building without any reserve, it has to be considered that, as soon as the offer is accepted by the seller, there is an agreement between the parties; the sale is therefore deemed to be agreed.
Certain foreign investors may indeed be misled by the legal principles applicable in their home country which, in some cases, include a right of withdrawal.
For instance, under French law, there is a withdrawal right of seven days in favour of unprofessional purchasers for any act relating to the construction and the acquisition of a property for residential use. Such a mechanism does not, however, exist under Belgian law.
It should be emphasized that there is no specific model for an offer to buy. The offer can be drawn up between parties by a real estate agent, by a notary public or by a lawyer. If the offer can be formalized in a written document, it can also be expressed in an email and even in a text message. In this respect, the Court of First Instance of Gent, in a judgment of 10 April 2012, recognized that a text message could be considered as an offer to purchase a house.
As a consequence thereof, making an offer on a building is not a trivial matter and should be treated with extreme caution.
The main consequence of the commitment of the prospective buyer is that the seller is entitled to request either the completion of the sale or the cancellation of the sale and the payment of damages.
In view of the above, it is advisable that the offer to buy contains, at least, the following elements: the name of the seller, the name of the purchaser, the description and the address of the building, the offer price, the period of validity of the offer and, if applicable, one or more conditions precedent.
The conditions precedent are particularly useful when some issues still need to be clarified, such as the need to obtain a mortgage, the cost of repair works, town planning issues or the existence of easements.
The insertion of such conditions precedent in the offer will allow the purchaser not to be bound, finally and irrevocably, by an offer to buy if one of the conditions precedent is not satisfied.
An alternative is, of course, to sign a non-binding letter of intent aimed at describing the next steps (due diligence, etc.) which could then lead to a final offer.
It is therefore fundamental that a prospective purchaser, especially when he is not familiar with Belgian law, carefully considers his words and acts (emails, text messages, etc.) when he expresses interest in a property, given that, as soon as he is deemed to have issued an unconditional offer, and when this offer is accepted, the purchaser has no right of withdrawal.