Brexit - Real Estate law

Major implications

Since real estate law largely falls under the jurisdiction of the national (or in Belgium: regional) authorities, it is not greatly influenced by European law. The impact of a hard Brexit on real estate law will therefore be limited.

However, a hard Brexit could have the following implications from a real estate law perspective:

• The Alternative Investment Fund Managers Directive, allowing for passporting of managers of real estate funds into the EU, will no longer be applicable. Funds managed by a manager in the UK will therefore no longer benefit from this passporting system into one of the EU states and vice versa. This might be an incentive for affected companies to move to other cities within the EU (see below).

• A hard Brexit might also have an impact on real estate-related agreements such as real estate loan agreements. Depending on their specific wording, a hard Brexit could for example trigger material adverse change clauses or increased costs clauses as lead down in these loan agreements.

As a consequence of Brexit, companies vested in the UK may also decide to move jobs out of the UK, which might in turn lead to an increased occupier demand for offices in Belgium, since the correlation between jobs and real estate is direct.

• Brexit will also have important implications for real estate taxes.

° Legal entities vested in the UK will for example no longer be granted tax benefits, such as reduced taxation when a non-profit organisation is granted a long lease or building rights (art. 83 W.Reg.).

° Also, UK-based real estate agents will no longer automatically benefit from a reduced registration duty when purchasing real estate located in Flanders (art. 2.9.4.2.4 Vlaamse Codex Fiscaliteit).

To do 

• When entering into a real estate agreement with a UK party, be aware of the possible impact of a hard Brexit on contracts. 
• While negotiating new contracts, specify whether or not a material adverse change clause applies on Brexit.