The soil certificate and the condition precedent: Court of Cassation brings clarification
In a judgment of 22 March 2018 (C.17.0067.N), the Court of Cassation ruled:
“The obligation to request a soil certificate for concluding an agreement on the transfer of land and to communicate it to the acquirer and to include the content of the soil certificate in the private deed protect the acquirer against the unconscious purchase of contaminated land.
In the light of this objective, the term "land transfer agreement" should also include any agreement or unilateral legal act whereby the acquirer already undertakes to purchase a land.
In view of the aforementioned objective of Article 101, § 1 and § 2 of the Soil Remediation and Protection Decree, namely to protect the acquirer against the unconscious purchase of contaminated land, the parties cannot legally conclude an agreement for the transfer of land under the condition precedent that it transferred property will not prove to be affected by soil contamination that gives rise to a remediation obligation at the expense of the owner. In such a case, the acquirer commits himself to acquiring a good before he has been able to become acquainted with the content of a soil certificate proving that the good is contaminated, which the legislator wanted to avoid.
On the other hand, in the light of the aforementioned objective, they can conclude an agreement on the transfer of land under the condition precedent of obtaining a blank soil certificate or a soil certificate showing that there is no soil contamination.
The fact that Article 116, § 1, of the Soil Remediation and Protection Decree provides that the acquirer can claim the nullity of the transfer that took place in violation of Article 101 does not preclude this. After all, requesting and communicating a soil certificate and including its contents in the private deed prior to the transfer are not elements that are necessary for the conclusion of the agreement."