The transferor must request the soil certificate from the Public Waste Agency of Flanders (OVAM) and communicate the information it holds to the acquirer before the land transfer agreement is concluded. The information in the soil certificate must also be included in all private and authentic deeds concerning the transfer of land. The purpose of this obligation is to protect the acquirer from unknowingly purchasing contaminated land. The soil certificate must state the identification details of the land and must also provide an overview of the most recent soil information that is available about the land. In practice, however, it has been found that the soil certificate doesn’t always fulfil that objective.
For example, a ‘blank’ soil certificate does not mean that the land is not contaminated, but simply affirms that no relevant details concerning the soil quality are available. But even when a soil certificate contains ‘favourable’ conclusions about the soil quality, that situation may change at any time in the future – even for the worse.
This important lesson can be drawn from a judgment of the Council of State of 8 July 2022 (no. 254.260, nv Wasserij Perfect). The Council of State reminds us that the soil certificate is merely for information purposes and only sets out the condition of the soil at a specific point in time. That situation may change if more recent soil testing leads to different conclusions. This means that the conclusions from a soil certificate may change if new information about the soil comes to light as a result of more recent soil tests or more advanced scientific insights.
A striking example is the PFAS issue.
It has become clear that a considerable number of favourable soil certificates have become outdated and soil-related obligations now also apply to plots of land with a ‘favourable’ soil certificate. Though this may feel somewhat surprising, given the purpose of the general obligation when transferring ownership of land, the Council of State confirms that this is perfectly in line with Flemish soil regulations. Nevertheless, this doesn’t necessarily mean that the new owner will be the one who has to carry out remediation. Indeed, a favourable soil certificate can constitute an important element when demonstrating a party’s status as an ‘innocent owner’. So overall, a soil certificate may contain a considerable amount of useful information about the condition of the soil, but it never remains valid for an indefinite period of time.
