Small but without limits

Member of the Bar of Dendermonde since 2020.
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Zone alienation in sales leads to various responsibilities

1. Until further notice, Flemings are still born with a brick in their stomach. Many owners buy an existing home with the objective to renovate, rebuilding or expansion at a later date without paying much attention to the urban status of the property concerned.

Nevertheless, the destination zone in which a house is located plays a primordial role, especially with regard to the future prospects of the house. The notary will request all information about this from the municipality. He takes responsibility for this and the buyer can rely on this information.

2. The following subdivisions can be made: the residential areas, the industrial areas, the service areas, the rural area, the agricultural areas, the wooded areas, the green areas, the park areas, the buffer zones, the recreation areas and the areas intended for other land use. There are different specific zoning regulations for each area.

3. When a house is located in an area in which the destination “living” does not occur, it is a zone-alienated situation. The Flemish Spatial Planning Code describes a zone-alienated construction as “either a construction that does not comply with the zoning regulations applicable to the parcel and that is not located within a non-dilapidated allotment, or a construction that is located in a reservation strip and which does not belong to the utility works for which the reservation strip is demarcated ”.

In this article, only the first part (and specifically the houses) of the definition description is taken as a starting point.

4. It should be noted that zone alienation cannot usually be identified with illegality. After all, zone alienation is often the result of the entry into force of the regional plan or a special construction plan (now a spatial implementation plan), at a time when the house was already existing and (deemed) to be licensed. Existing constructions from before April 22 1962 are even considered to be licensed at all times.

The existing constructions built between 22 April 1962 and the first entry into force of the regional plan are also deemed to be licensed, unless the licensed nature is contradicted. Below, a more in-depth look at the zone-alienated legal home, to which a generic regulation of basic rights from the Flemish Spatial Planning Code applies.

4.1. In contrast to destination-compliant homes, there are more urban planning restrictions for zone alienated homes. Nonetheless, owners of zone alienated homes can rely on a number of basic rights, which benefits legal certainty: after all, the existing permit generated rights in rem.

These basic rights apply in all areas organized by a spatial implementation plan or a construction plan (regional plan, general and special construction plan). Structural work on a zone alienated home is therefore possible, provided that the request for renovation, rebuilding or expansion is subject to conditions, which can sometimes be very far-reaching.

4.2. Below is an overview of the current regulatory framework for each building intention separately.

4.2.1 Renovation of an existing house

Provided that the number of housing units is limited to the existing number. In all zoning areas, the applicable zoning regulations must not in themselves be a ground for refusal when assessing an application for a urban planning permit. (art. 4.4.12 Flemish Spatial Planning Code)

4.2.2. Rebuilding an existing house in the same place

Rebuilding occurs if the new home overlaps at least three-quarters of the existing living area, whereby the existing living is enclosed both the surface area of the main building and that of the physically adjoining appurtenances, which from a construction-technical perspective are directly connected or supported by the main building. (art. 4.4.13, § 2 Flemish Spatial Planning Code) Under the same condition of the existing number of housing units, the following additional restriction must be observed:

If the existing building volume is more than 1000 m3, the maximum volume of the rebuilt house is limited to 1000 m3 (art. 4.4.13, § 1 Flemish Spatial Planning Code).

4.2.3. Rebuilding an existing house on a changed location

The strictest restrictions apply to this category. More specifically, the three conditions listed below must be fulfilled cumulatively (art. 4.4.14, § 1, first paragraph Flemish Spatial Planning Code):

•                  Prohibition of expanding the existing number of housing units

•                  At least one of the following causes can be identified for the rebuilding:

a / the house has been hit by a building line

b / the house is located in the rear area

c / the relocation follows for reasons of good spatial planning and is explicitly motivated by the applicant on the basis of better integration in the environment, better site occupation or a qualitative concept.

•                  At least one of the following conditions is met:

a / the rebuilt house will have the same front construction line as the nearest construction;

b / the new situation results in a better local layout, and focuses on the surrounding buildings or local current implantation methods.

4.2.4. Expansion of an existing home

The expansion of an existing zone-alienated house can be licensed, on the condition that the building volume is limited to a maximum of 1000 m3 and the number of housing units is limited to the existing number. (art. 4.4.14, § 1 second paragraph Flemish Spatial Planning Code)

4.3. For the sake of completeness it should also be mentioned that the legislator has provided specific conditions, which will not be discussed further, for:

  • recently demolished zone-alienated homes (art. 4.4.20 § 1 and 2 Flemish Spatial Planning Code).
  • the hypothesis that an alien home was destroyed or damaged as a result of an alien cause that cannot be attributed to the owner (art. 4.4.21 Flemish Spatial Planning Code).

5. The local government, in the first instance the Board of Mayor and Aldermen, is responsible for the assessment of the application of an urban planning permit that relates to a zone-alienated home.

This is a difficult task: not only must it check the application against its compatibility with good spatial planning (in accordance with Article 4.1.3. § 2 Flemish Spatial Planning Code), but the above-mentioned regulations regarding zone-alienated constructions must also be respected. Things sometimes go wrong here, eg. when a permit is nevertheless issued, despite the fact that one or more of the aforementioned conditions are not met.

In this case, the litigant who has an interest can lodge an appeal with the Deputation (and later possibly an annulment appeal with the Council for permit disputes, in extremis even an appeal in cassation with the Council of State). However, once the appeal period has expired, the permit becomes final and from then on it is allowed to rebuilt, reconstruct and expand.

6. The only option that remains for the person seeking justice, who suffers damage or nuisance (which must be proven) as a result of the planned works, is to go to a civil court with a view to obtaining compensation.

The latter can, in application of art. 159 of the Constitution disregard (part of) the license, on the understanding that measures can never be ordered that would prejudice the obtained license, otherwise legal certainty and the separation of powers would be jeopardized.

7. The deception about the urban development status can be challenged, at least as a pre-contractual error towards the seller, if he knew or should have known.

If not, the responsibility of the notary is discussed. If the latter had requested all information from the municipality, and the latter provided incorrect information, its liability would be jeopardized.