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