The article endeavours to determine, in each situation, which right in rem is the most appropriate and to provide selection criteria from a civil and tax point of view in the context of promoting and making available a building or part of a building. 

The final part of the paper looks at volume ownership and the civil and tax structures that make it possible to optimise this new form of organisation of complex complexes compared with traditional co-ownership.

Key points:

  • Legal regimes and tax considerations: The first part of the article outlines the legal regimes governing usufruct (usufruit / vruchtgebruik), long-term leases (emphytéose / erfpacht), and building right (superficie / opstal), highlighting key tax considerations.
  • Choosing the appropriate right: The second part addresses the selection of the most suitable right in rem for specific real estate investments and operations frequently encountered in practice.
  • General characteristics: A summary table of the general characteristics of rights in rem is provided.
  • Real estate development: Focus on development on bare land and redevelopment issues, particularly building renovations.
  • Provision of real estate: Discussion on the provision of real estate using rights in rem.
  • Volume ownership: Examination of volume ownership following recent developments in practice.

Methodological approach:

  • The article adopts a practical approach, presenting concrete situations to illustrate the choice of the right in rem.
  • Each example includes the most appropriate right and justifications for the choice.
  • The article puts into perspective certain traditional approaches developed in the legal literature on the basis of the new property law (transfer of a building by a long-term lessee, vesting of a right to build on a built property and tax treatment of this right in the context of a redevelopment).
  • The analysis considers the broad suppletivity of the Civil Code

As a conclusion, the essence of each right of use should guide practitioners in their choice, considering both civil and fiscal qualifications, especially in the context of tax abuse.

For another exploration of these topics and more, please refer to the cover page, table of contents, and the first page of the contribution available on our website. To read the full article, you can purchase the book on the Larcier website. This comprehensive analysis will provide valuable insights for anyone involved in real estate investments and operations.

 

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