The signature of a pre-sale agreement is by no means an insignificant act: the sale is complete between parties and so the building changes hands between parties. Nevertheless this change of ownership is only opposable to third parties as from the date on which the authentic deed is passed, within four months after the signature of the pre-sale agreement, of which the registration is compulsory and which is subject to a payment of 12,5% registration fees in Brussels.
Nevertheless, the Code does not only impose the registration of all deeds passed before a notary, but also imposes the registration of all deeds concerning a transfer of property of immovable assets. So each pre-sale agreement duly signed between parties, must be registered, under penalty of sanction.
This also applies to duly signed pre-sale agreements, but for which the parties reconsider their decision afterwards. So sometimes a very uncomfortable situation arose: the first pre-sale agreement had to be registered, with the payment of 12,5% proportionate registration fees and one had to commit to complete a legal procedure against his ex-contractor, to obtain a reimbursement of the fees.
The reimbursement was indeed only possible if the pre-sale agreement was dissolved, cancelled, terminated or annulled by judicial decision; the consent, even from all parties, was not enough, and if the parties reconsidered the pre-sale agreement without conducting such a legal procedure, the reimbursement of the fees of 12,5% was not possible.
The Walloon Region and the Flemish Region have adapted their legislation for some time now, but Brussels-Capital Region lagged behind.
Today, for the sale agreements that are not executed, the Brussels-Capital Region provides the collection of a specific fixed right of 10€, with the purpose to exempt the signed agreement regarding the sale of a building but which was then dissolved, cancelled, terminated or annulled in joint agreement of all parties (and thus without the intervention of a judge), from the 12,5% proportionate registration fees, provided that the agreement of dissolution, cancelling, termination or annulment was duly presented for registration.
This new regulation applies when the pre-sale agreement has been signed, but the parties reconsider before it is registered (and so before the payment of the fees of 12,5%), as well as when the pre-sale agreement was already submitted for registration and the parties only reconsider after having paid the proportionate fee. In the latter case, the proportionate fees will be reimbursed; the first case they won’t be due.
The example most used will undoubtedly be the one where the parties reconsider the sale after the passing of the authentic deed (and the payment of the 12,5% proportionate fee), as a result of the termination of the agreement due to the automatic fulfilment of a resolutive condition. This clause explicitly clarifies that it dissolves the agreement without the parties having to ask for the dissolution before the court. In a sale agreement regarding a building it can be foreseen that if the price is not paid before a determined date, the sale agreement will be dissolved automatically and without intervention of a judge: the pre-sale agreement and the deed establishing the dissolution must then be registered, provided the payment of the fixed fee of 10€, and the proportionate fees that were paid at the time the authentic deed of sale was registered, must be reimbursed (provided that the condition is fulfilled within a period of one year).
Furthermore, the Brussels-Capital Region extended these possibilities to amicable dissolution, cancelling, termination or annulment of all transactions regarding the transfer of immovable assets, if it is rewarded – as distribution or transfer of undivided shares for instance – or even more to the donation of immovable assets.
This action enters into force for all immovable agreements subject tot the proportionate fee and concluded as from December 29th 2016.