A new year, a refined information duty for the flood sensitivity of real estate in the Flemish Region
Deeds transferring real estate located in the Flemish Region already had to include a water paragraph informing the acquirer of the property's susceptibility to flooding. Acquiring a property at risk of flooding can have major financial and legal consequences such as increased construction costs, specific integrated permit conditions, etc. The Flemish government has now amended this information duty with the aim of refining and clarifying it for an acquirer.
Information duty
In every private or authentic deed of sale, lease for more than nine years, contribution to a company, transfer or establishment of usufruct, long term lease or building right or any other transfer of ownership for valuable consideration of real estate located in the Flemish Region, certain information must be included to inform the acquirer of the property's susceptibility to flooding[1]. Until now, the so-called water paragraph of the above deeds indicated whether the property in question was located:
- in areas actually or potentially prone to flooding (“effectief of mogelijk overstromingsgevoelig gebied”);
- in a delineated flooding area (“afgebakend overstromingsgebied”); or
- in a delineated riparian area (“afgebakende oeverzone”).
In addition, the water paragraph also indicates whether or not the property is located in a 'flood-risk area' (“risicozone voor overstromingen”). This last indication is not included in Flemish water regulations, but follows from federal insurance regulations.[2] The property's location in a flood-risk area results in an insurer being able to charge an increased insurance premium or even refuse coverage against flood damage for new buildings in these zones.
With an amending decree and decision[3] that came into force on 1 January 2023 (for transitional reasons, the amendments concerning the information duty only apply to deeds signed as of 1 April 2023)[4], the above water information duty has been partially amended. The flood sensitivity of a property will no longer be indicated by the terms ‘area actually prone to flooding’ or 'area potentially prone to flooding', but by means of a property score (P-score) and, if applicable, a building score (G-score). A distinction is thus made between the flood sensitivity of the property itself, on the one hand, and of any building larger than 25 m² on this property, on the other.
The P- and G-scores are A, B, C or D where:
- score A means that no flooding is modelled;
- score B means that there is a small probability of flooding under climate change by 2050;
- score C means that there is a small probability of flooding under the current climate; and
- score D means that there is a medium probability of flooding under the current climate.
These scores are determined on the basis of 3 new maps showing the flood susceptibility of properties and buildings: (i) from the sea, (ii) from watercourses (fluvial) and (iii) from internal precipitation (pluvial). These maps are updated at least every 6 years. The P- and G-scores are determined by the highest score of the property and building respectively on these 3 maps. For example, if a property has score A according to the map flood susceptibility from the sea, score B according to the map flood susceptibility from watercourses and score C according to the map flood susceptibility from internal precipitation, then the P-score of the respective property will be score C. The P-score can never be lower than the G-score.
For completeness’ sake, we note that in addition to this new indication of the P- and, if applicable, G-score, it should still be indicated in a private and authentic deed whether or not the property is located in a delineated flooding area, in a delineated riparian area or in a flood risk area. The legislator has not introduced any changes to this.
Publicity for real estate should also include the P- and, if applicable, G-score. Depending on the type of publicity, its full mention and/or a symbol is mandatory.
Flood certificate
The Flemish legislator has also provided the possibility for a recognized expert to draw up a flood certificate (“overstromingsattest”) in which they establish that the flood sensitivity differs from the flood sensitivity resulting from the above-mentioned maps of the Flemish Government due to building characteristics, construction method or other measures taken for flood protection. In this case, the deed will state that a flood certificate has been obtained and the resulting updated score. The flood certificate may not be more than 1 year old at the time of the deed.
Website
The P- and G-score, as well as the possible location in a flood risk area, delineated riparian area or delineated flooding area can be consulted on the following website: https://www.waterinfo.be/informatieplicht. Through this website, anyone can download a flood report and a printout of the flood risk areas that contains all the required information. In addition, the P- and G-score are also visible in the Buildings Pass (“Gebouwenpas”), as is the flood certificate if it has been issued.
Summary
Every private and authentic deed of sale, lease for more than nine years, contribution to a company, establishment or transfer of a usufruct, long term lease or building right or transfer of ownership for valuable consideration of real estate located in the Flemish Region will have to include the following statements in the water paragraph as of 1 April 2023:
- the property's P-score;
- (if applicable) the G-score of each building on the property;
- whether a valid flood certificate has been issued for the property;
- whether the property is located in a delineated flooding area;
- whether the property is located in a delineated riparian area; or
- whether the property is located in a flood risk area.
Water assessment
Finally, a new map has also been inserted that allows to determine at property level which entities must provide an advice as part of the water assessment (“watertoets”) for a plan, program or permit. This map is also available online: https://www.waterinfo.be/watertoets.
Feel free to reach out to us if you have any questions or require any further information.
[1] We note that according to article 1.3.3.3.2, §1 coordinated decree of 15 June 2018 concerning the integrated water policy (“Gecoördineerd decreet van 15 juni 2018 betreffende het integraal waterbeleid”) the scope of the water information duty slightly differs between, on the one hand, private deeds not drawn up by an instrumental officer and, on the other hand, private or authentic deeds drawn up by an instrumental officer:
- "Any person who draws up a private deed of sale or lease for more than nine years of real estate, of a contribution of real estate to a company and also of establishment or transfer of usufruct, long term lease or building right, shall indicate whether the real estate is wholly or partly situated (...)"
- "The instrumenting officer shall indicate in all private and authentic deeds of sale or of lease for more than nine years of real estate, of a contribution of real estate to a company, and also in all deeds of establishment or transfer of usufruct, long term lease or building right, and in any other deed of transfer of real estae for valuable consideration, with the exception of marriage contracts and their amendments and contracts relating to the joint ownership whether the real estate is situated (...)" (free translation)
[2] Art. 129 Law of 4 April 2014 on Insurances (“Wet van 4 april 2014 betreffende de verzekeringen”)
[3] Decree of 24 June 2022 amending various provisions from the law of 28 December 1967 concerning the unnavigable watercourses, from the decree of 5 April 1995 concerning general provisions relating to environmental policy and from the coordinated decree of 15 June 2018 concerning the integrated water policy and the decision of the Flemish Government of 25 November 2022 amending various decisions related to the water assessment and information provided in articles 1.3.1.1 and 1.3.3.3.2 coordinated decree of 15 June 2018 concerning the integrated water policy (“Decreet van 24 juni 2022 tot wijziging van diverse bepalingen in de wet van 28 december 1967 betreffende de onbevaarbare waterlopen, van het decreet van 5 april 1995 houdende algemene bepalingen inzake milieubeleid en van het decreet van 18 juli 2003 betreffende het integraal waterbeleid, gecoördineerd op 15 juni 2018 en Besluit van de Vlaamse Regering van 25 november 2022 tot wijziging van diverse besluiten die verband houden met de watertoets en de informatieverplichting uit artikel 1.3.1.1 en 1.3.3.3.2 van het decreet van 18 juli 2003 betreffende het integraal waterbeleid, gecoördineerd op 15 juni 2018”).
[4] The Decision of the Flemish Government of 25 November 2022 amending various decisions related to the water assessment and information provided in articles 1.3.1.1 and 1.3.3.3.2 coordinated decree of 15 June 2018 concerning the integrated water policy, provides a transitional regulation:
“This decision applies to:
1° private deeds entered into after 31 March 2023;
2° authentic deeds for which the private deed have been entered into after 31 March 2023;
3° Authentic deeds executed after 31 March 2023 if no private deed has been entered into;
4° public sales whose sales transaction commenced after 31 March 2023.”