New Royal Decree on clauses in real estate mediation in force since 1 February 2024

1. Changes regarding the nature of the real estate mediation agreement

Whereas the previous RD provided that the mediation agreement had to be the subject of a written agreement, the new RD slightly modifies this. It provides that the mediation agreement be drawn up on a durable medium. This can therefore still be a written document, but from now also an electronic file.

A durable medium should enable the consumer to store the information so that it is easily accessible for future use, remains available long enough and can be presented unchanged.

2. Right of withdrawal

Under the old 2007 Royal Decree, there were strange interactions between the provisions concerning the right of withdrawal as provided for in the Royal Decree itself and the provisions in this regard provided for in the Economic Law Code (Wetboek Economisch Recht/Code de Droit Economique, hereinafter referred to as WER/CDE). 

The WER/CDE provides for a 14-day right of withdrawal if the mediation agreement is entered into outside the real estate agent's office. The RD continued to provide a 7-day revocation period regardless of where the contract was entered into. In fact, when the Market Practices and Consumer Protection Code was transferred to the WER/CDE, the legislator had forgotten to provide much-needed transitional provisions.

This was used by real estate agency to provide for two withdrawal periods: if the contract was entered into at the real estate agent's office, a withdrawal right of 7 days applied and if the contract was entered into outside the office, a withdrawal right of 14 days applied. This practice violated the spirit of the regulations. 
The new RD ends this conflict and introduces a 14-day right of withdrawal regardless of where the contract is entered into.

As was the case under the old RD, there is an option to waive the right of withdrawal. The new RD has admittedly simplified the wording of this. A consumer who wishes the real estate agent to commence his assignment already within the 14-day withdrawal period may expressly request this. This request must be made on a durable medium, whereby the consumer also immediately acknowledges that he loses his right of withdrawal in case the mediation agreement is executed before the consumer has exercised his right of withdrawal.

3. Regarding the scope of the agreement

If the scope of the agreement also includes negotiating the price or terms of purchase or rental, the maximum purchase price and maximum rental price and the terms of purchase and rental must be clearly specified.

The new RD clarifies that real estate agents can only deviate from these amounts and conditions with prior and express agreement on a durable medium. 

4. Compulsory attestations

The new Royal Decree ensures that the property agent must attach to the contract a list of compulsory attestations, stating that the consumer (the seller or lessor) can provide these attestations himself or procure them.

Real estate agents can still offer to request the attestations for the consumer. This will now require the express consent of the consumer per attestation. Real estate agents must also make it clear whether the price of these certificates is included in the price of the assignment or whether they are charged separately.

If a real estate agent charges a fee for obtaining the certificates and there is also a fee for the certificate itself, there must be a communication to the consumer regarding the total price per certificate. 

If the price cannot be calculated in advance, one must state how the price is calculated and in any event that such additional costs may be due. 

Real estate agents may not take any margin on the cost price of the attestation in question that one requests. The RD provides that the cost price requested must correspond to the actual cost for the attestation and, if applicable, for obtaining the attestation. Upon the consumer’s request, the real estate agent must provide proof of the actual cost.

5. Duration of the agreement

The old RD required the real estate agent to state the duration of the agreement. It could implicitly be deduced from this that it was not possible to enter into a mediation agreement of an indefinite duration at the start of the contract.

The obligation to explicitly state the duration in fixed-term contracts also remains in the new RD. What is new in the RD is that it is now possible to enter into a contract of indefinite duration. At the same time, the legislator provided for the notice period of such a contract. Such notice period may not exceed two months and must be explicitly provided for in the contract.

The maximum duration for an exclusive agreement remains the same at six months, but it should be noted that the legislator gives a very limited definition of what constitutes an exclusive agreement. Only an agreement involving one real estate agent and in which the client may not take the initiative himself are included in this term. This means that partial and co-exclusive agreements can now have a longer duration.

The provisions on tacit renewal are changed in the new RD only with regard to the notice period after renewal. The old RD of 2007 provided for a notice period of up to one month. The new RD provides for a maximum notice period of one month for contracts with an original fixed term of less than or equal to three months and a maximum notice period of two months for contracts with an original fixed term of more than three months. 

6. Compensation in case of early termination

Where a termination fee was stipulated in case of early termination, the 2007 RD ensured that the termination fee could not exceed 50% of the real estate agent's fee or commission. The new RD introduces some changes. 

Under the new RD, the termination fee may not exceed 50% of the rate payable by the consumer (as set out in the RD) if the termination takes place within the first three months after entering into the contract. This percentage drops to 25% if the termination takes place after the first three months after entering into the contract. 

7. Conclusion

Real estate agents must adapt their contracts with consumers to these novelties as these obligations came into force on 1 February 2024. 

The changes are too far-reaching to ignore, but in some areas they also offer additional opportunities for the real estate agent.

Do you need help or advice on adapting your brokerage agreements? If so, do not hesitate to contact our specialists: +32 (0)2 747 40 07 or info@seeds.law.