Scope of right of superficies legally broadened

With the Act of 25 April 2014 containing several provisions relating to justice, probably one of the oldest Acts in force in Belgium, in particular the Superficies Act of 10 January 1824, is amended, and this for the first time in 190 years.

The "new" Superficies Act has been applicable since 24 may 2014.

1. How and why has the "new" Superficies Act come into being?

The proposal to amend the Superficies Act resulted from the initiative of a working group composed by the Belgian Royal Federation of Notaries Public, supplemented by academics. After all, in the notarial profession there was an increasing uncertainty about  the scope of the right of superficies.

More specifically, the question was (i) whether it was possible to establish a right of superficies for  constructions  on other people's buildings (and so not only for constructions on other people's land) and (ii) whether the owner of the building concerned in that case also needed to be the landowner. In addition, the question arose whether a right of superficies could be established for constructions that are located under (for instance tunnels) or above (for instance solar panels) the ground and so not only for constructions on the ground.

For all these matters, in practice legal "possibilities" have already been developed in legal doctrine and case law, for which clarity was not always available.

The uncertainty that existed with regard to the scope of the right of superficies is now brought to an end by ratifying the "possibilities” developed by legal doctrine and case law legally in this "new" Superficies Act.

2. The main amendments of the "new" Superficies Act

The main amendments of the Superficies Act therefore refer to the following:

• The Superficies Act confirms the possibility developed in legal doctrine and case law not only to grant a right of superficies on the ground, but also under the ground (for instance parking garages, pipelines, etc.) and above the ground (for instance solar panels).

• In addition, it is confirmed that a right of superficies in space can be limited, since it can be granted "in part" on, under or above the ground (for instance the erection of a newspaper stand at the entrance of a shopping centre).

• Not just a landowner can grant a right of superficies, but also any holder of a right in rem in real estate within the limits of his right.  A holder of a superficies, leaseholder, usufructuary can therefore  grant a right of superficies in turn.

3. Conclusion

As has already been indicated above, in the light of the current state of legal doctrine and case law, these amendments do not refer to fundamental changes as regards  the "old" Superficies Act.

They only imply a confirmation of the practice developed with the support of and in legal doctrine and case law. 

The amendment of the Act has the advantage of providing clarity about issues that previously were not explicitly provided for in the Superficies Act, which is only to be welcomed.