Explained: different types of property rights (part 2)

As discussed in the earlier blog post , there are different types of business rights. Today we will take a closer look at the following business rights:

• Right of superficies
• Usufruct
• Easements

Right of superficies

A building right in Belgium is a right in rem that gives a person (the building owner) the right to have a building or construction on the property of someone else (the landowner). The right of superficies is recorded in a notarial deed and regulated by the Civil Code.

Important aspects of building rights in Belgium include:

• Duration of the Building Right : The building right can be established for a certain period, usually for long periods such as 50, 75 or 99 years. After this period, the right of superficies can be renewed, if the parties so wish.

 

• Rights and Obligations of the Installer : The installer has the right to construct and maintain a building on the landowner's property. The installer can use the building, rent it out and perform other actions with it, such as selling it. The installer also has a duty to maintain the building and carry out repairs.

 

• Rights of the Landowner : The landowner retains ownership of the land and has the right to use the land for other purposes that do not conflict with the building rights.

 

• Termination of the right of superficies : The right of superficies can end upon expiry of the agreed period, if the superficiary relinquishes the right, or if the superficiary fails to fulfill the obligations under the superficies right.

Building rights are often used in situations where someone wants to build a building on land that is not their property, such as when building a house or commercial building on rented land. It is important to seek legal advice when establishing a building right to ensure that all legal requirements are met and that the rights and obligations of all parties involved are clearly recorded.

In short: A building right allows a person to erect and maintain a building on someone else's land. After expiry of the right of superficies, the building becomes the property of the owner of the land.

Usufruct

In Belgium, usufruct is a right in rem that gives a person (the usufructuary) the right to use and enjoy the fruits of a property, such as rents, leases or crop yields, for a specified period of time, usually for life of the usufructuary. Ownership of the property remains in the hands of another person or entity (the bare owner). This right is laid down in the Civil Code of Belgium, in articles 578 to 591.

Important aspects of usufruct in Belgium include:

• Duration of the Usufruct : The usufruct can be for the life of the usufructuary or for a certain period, such as 10, 20 or 30 years.

 

• Usufructuary rights of use : The usufructuary has the right to use and enjoy the property, including the right to collect the proceeds from the property, such as rental income, lease income or agricultural yields.

 

• Maintenance and improvements : The usufructuary is usually responsible for the maintenance of the property. In some cases, the usufructuary may also be given permission to make improvements, but this may depend on the specific conditions of the usufruct.

 

• Rights of the bare owner : The bare owner retains ownership of the property and has limited rights during the usufruct period. For example, the bare owner cannot decide on a sale or major changes to the property without the consent of the usufructuary.

 

• Termination of the usufruct : The usufruct ends upon the death of the usufructuary (if the usufruct has been established for life), upon expiry of the agreed period, or if the usufructuary relinquishes the usufruct.

Usufruct is often used in inheritances, where, for example, the surviving spouse receives the usufruct of the joint house, while the children inherit bare ownership. It is important to seek legal advice when establishing a usufruct to ensure that all legal requirements are met and that the rights and obligations of all parties involved are clearly set out.

In short: A usufructuary has the right to use and enjoy the fruits of a property, such as collecting rent or harvesting crops, for a specified period of time or for the life of the usufructuary.

Easements

An easement in Belgium is a right in rem that allows the owner of a property to exercise certain rights over the property of another. Easements are laid down in the Civil Code of Belgium and regulate specific situations in which the owner of the servient estate (the estate that is subject to servitude) has limited obligations towards the owner of the dominant estate (the estate that benefits from the servitude).

Easements can take several forms, including:

• Right of way : The owner of the dominant property has the right to cross the servient property, for example to gain access to his property.

 

• Right of light and view : The owner of the dominant property has the right to light and air from the servient property. This means that the owner of the servient estate may not build tall buildings or structures that obstruct the light or view of the dominant estate.

 

• Right of drainage : The owner of the dominant property has the right to drain rainwater over the servient property, for example via gutters or drainage pipes.

 

• Right of drainage : The owner of the dominant property has the right to discharge excess water onto the servient property.

 

• Right of utilities : The owner of the dominant property has the right to install utilities such as electricity, water or sewerage over the servient property.

 

These easements are usually recorded in the notarial deed when purchasing real estate and are transferred from one owner to another. They remain in effect even if the property changes hands. If disputes arise over easements, the court can intervene to determine the rights and obligations of the parties involved.

It is important to seek legal advice when establishing easements to ensure that all legal requirements are met and that the rights and obligations of all parties involved are clearly recorded.

In short: These are rights in rem that restrict the use of a property, such as the right of way (right to pass over the land of another) or the right of view (right to receive light and air through the land of another).