PLAN OF THIS BLOG (revised June 10, 2007)
1. Direct access to the text of the Civil Code
2. Doctrine (including "gratuitous and building land": June 2007)
3. FORMS
a) notarized FR
b) FR ssp acts
c) act ssp NL
4. JURISPRUDENCE
5. Warnings of the blog author, etc..
6. Other novelties Bløf 2007 legislative
1. Access to the Civil Code (Fisconet = always updated)
TITLE X: OF LOAN Art. 1874-1914
CHAPTER I: PURPOSE OF LOAN or gratuitous
Art. 1875-1891
Section I: Nature of loan for use
Art. 1875-1879
Section II: Commitments of the borrower
Art. 1880-1887
Section III: Commitments to the lender to use
Art. 1888-1891
2. Doctrine
Do not forget to add clauses Urban ...
* On site fancophone Council of the Federation of Notaries
http://www.notaire.be/info/acheter/963_commodat.htm
* On the site of the "House for associations"
http://www.mpa80.be/article.php3?id_article=557
Notary Directory * From: THE commodatum by Bernard Tilleman (KUL + ULg) (May 2004)
(site http://rni.larcier . be / accessible only to subscribers)
Excerpts:
The bailment can not yet systematically used to circumvent the laws on the lease, including the leases. When this figure at left is used for cropland, it is advisable to limit the duration of the contract and mention why it was resorted to a contract of this type-p. ex. Talks to sell, change of destination of the property ..)
No. 1
It may even be allowed in certain temporary situations, a right of use is granted precarious for a fee. The risk here is, however, that this contract is reclassified as innominate contract leases.
No. 18
... the customer can always pay the rent in cash.
No. 23 The right of use granted to a person on a meadow in charge of maintenance and to collect the hay was not considered a lease, to the extent where the borrower is usually required under s. .1880 CC, maintain the property in good family man.
No. 41 The leases are subject to special regulations, designed primarily to give them some stability <== opposite ==> The commodatum: - It is not governed by any rules specific. That's why some real property will sometimes be a gratuitous way to avoid the application of more stringent laws, such as those relating to commercial leases or leases. "
No. 204: Distinction with a the leases. - Termination without cause ad is an index to distinguish the bailment of the lease.
* My Land can be lent for use?
"A few years ago, I inherited a building plot. But the chances that I use it to build in the coming years are very low. In fact I live with my family in a house that I bought it with my husband and we completely renovate.
The man who has his bungalow next to my building land asked if he could use it as a vegetable. I have nothing against but I would like to see the matter settled by a contract. I do not want to be paid but I wish I could get my land in the state at any time. What do you recommend? "
The best solution is to establish a contract for" ready to use. " It is a form of loan unknown to the general pub-lic, also known as gratuitous, but that exists in civil law for a very long time. The contract may be established by private agreement or deed.
Nature comodato
If the contract is established under private seal, there is no registration requirement, contrary to what occurs for a lease. If he is standing before a notary, you must pay the sum of EUR 25 (fixed duty general).
The loan usa-ge is a contract whereby the owners (or lender) submits something to the borrower for it makes use, with an obligation to make the thing at the end of the contract. The lender retains ownership of the thing. All objects that are in commerce and which does not deteriorate through use fai-re can be such a contract.
The lender can not claim compensation, and the contract can not be transformed into lease (with all its legal consequences).
however, it is prudent to expressly state in writing that the legisla-tion on the rent, on lease or commercial lease does not apply. The right of the borrower to use the cho-will be part of his estate. For obvious-ter this, you must specify in writing that the contract is awarded as-handed. The borrower is obligated to take care of the thing lent in a good family man, the thing can be used will conform its nature or contractual provisions.
Clarity foremost
About the possibility of limited use, it is better to be clear in what you agree. In your case pre-cis, it is best to state that: "by-one can be used for vegetable growing, privately." It would even be wise to add that the lender is prohibited from storing garden waste and kitchen (like wood or grass clippings). The lender can recover the object re-thing after the expiry of the period agreed or, in the absence of agreements on this point, after the thing has served the purpose for which it was lent. It is more prudent to establish a li-mite time in the contract. You louse-vez provide that each of the two parties has the option to terminate the contract by letter of notice. And it is not even necessary to provide de-lais notice. Cons plan by the borrower at the end of the contract, shall deliver the thing in the same condition as when the contract began. And ob-gez the borrower to remove all the "additions" potential (garden shed, for example). If the value of the thing-ued decrease solely through the normal use of it, even because of the borrower, it owes nothing to the owner-re. Conversely, if the borrower had to incur costs to use the thing, he can claim the reimbursement to the owner.
Finally add in the contract a clause which stipulates that the owner should not compensate the borrower for you always increase in value of the thing out because of the use made of it. Eric L. @
Spruyt, Notary Notaries in Berquin Associate Professor at the Fiscale Hogeschool
, Brussels (EHSAL)
With the thanks of the author of this blog for permission to reproduce this text.
* Jean-Paul CUTE in Notarius, 1983, No. 3, p. 64 et seq. with formula.
* For information, the website "farm lease" from the author of this blog http://www.angelfire.com/co/Dochy/BAILAFERME . html : no longer includes the gratuitous acccessible only on this blog.
* TRANSCRIBE office of mortgage?
NO: Only an act of donation or transfer for consideration of a loan for use must be transcribed.
Car loan for use of a building does not confer any real right and shall not be transcribed. (Rep. Not., TX, Privileges and Mortgages, *, p.154 No. 125).
* From website "Belgian Tax Law ' www.businessandlaw.be
Get tax information, legal and accounting under Belgian law (click:) " Need urgent " - Text of Wednesday December 28, 2005. "Sometimes, to avoid a lease regulated (lease of residence), the parties have attempted to characterize the provision of a home loan or gratuitous use. This is the case, for example, when 'precarious occupation is viewed as not conferring rights (...)" See art and especially art .1888 .1889 Civil Code, the bailment does not confer more stability than the precarious occupation. See possibly: CIVIL CODE / Burgerlijk Wetboek
3. MODELS (from Mailing List of Notaries that both FR NL)
REMEMBER THE TERMS TOWN PLANNING A DD!
a) By deed
YEAR .... The
Before Us, Maître ... Notary ...
APPEARANCES: 1 M *
* Hereinafter referred to as "the lender" on the one hand;
2 M *
Hereinafter referred to as * BORROWER "on the other hand,
Who have requested the undersigned notary to enact the following convention Avenue directly among themselves
ARTICLE ONE: The undersigned
OF FIRST PAY TO USE FREE declares, the undersigned THE OTHER HAND, who accepts, the property shall hereinafter described: *
ARTICLE TWO - DURATION:
This course is ready to use the *
is granted for an indefinite period to which the owner may terminate unilaterally and without having to prove any ground , by giving one month's notice given by registered mail, the postmark date as evidence of the departure time.
In case, the express consent of the owner, the property would have been grown on one-month period specified above shall be extended until the removal of the growing crop and in other case, the said period is extended until the end of the season.
ARTICLE THREE - OUT:
The borrower agrees to vacate the premises and to make them free of occupation at the term agreed, knowing that failure to do so, it may take place directly against him by the owner on one of the big production of this act, without trial and cost of defaulting.
ARTICLE FOUR - PURPOSE:
The borrower may use the property as described above before use *
The property is recognized in good repair and manure and is provided with fences.
ARTICLE FIVE - FREE:
This loan is absolutely free to use.
SECTION SIX:
The owner is under no obligation under this contract.
The lender retains ownership of the thing lent, and it also retains possession that the borrower is merely in possession of the property and therefore can not prescribe any time by anyone.
ARTICLE SEVEN:
The borrower may assign its rights or donate property to rent in anyone.
ARTICLE EIGHT:
This contract is concluded exclusively between the parties hereto and is expressly stipulated that the commitments formed by the bailment does not pass to the heirs of the lender or to the heirs of the borrowers.
NEW ARTICLE - DUTIES OF THE BORROWER:
The Borrower shall undertake, in turn, on pain of all damages, if any:
a) to ensure a good father to custody, maintenance and conservation of the property loaned;
b) to use it only for the specific purpose of this Convention;
c) to make the property loaned to the owner on the first request that it will make him the forms and deadlines established in Article two above.
ARTICLE TEN - EXPENSES OF THE BORROWER: If
to use the thing, the borrower has some expense, he can not repeat it. An exception is made for the rear fertilizer resulting from the mandatory application of fertilizer with the normal borrower warrants.
WHICH ACTE.Fait and spent Ittre in the study. Date as above. Read full
made herein, the parties have signed with us, the Notary.
================================================ ============================
b) by private deed FR (two forms)
BETWEEN THE UNDERSIGNED:
# # Hereinafter invariably designated "the lender".
ONE HAND.
# # Hereinafter invariably designated "BORROWER".
OTHER.
IT IS AGREED AND ACCEPTED AS FOLLOWS:
The lender said pay to use the borrower accepts, the property hereinafter designated:
DESCRIPTION OF PROPERTY. #
C0NDITIONS:
This ready to use is entered as absolutely FREE. He will take over the
# to finish upon removal of the crop growing season # automatically by the mere lapse of time without needing to leave or notice and without tacit renewal.
# There may be terminated early by either party, by giving six months' notice by registered letter and possibly extended to the removal of growing crop or to the end of the season underway and grassland without compensation.
# It may however be renewed in whole or in part from year to year for the duration of a single growing season, with a new agreement prior written parties under the same conditions as those set forth above.
# In case of sale of OTC batch or otherwise of all or part of this property, the purchaser shall be entitled to terminate the loan for use of the lot or portion of property acquired by him, by giving three months, possibly extended to the removal of growing crop or to the end of the season during grassland and without compensation.
The borrower agrees to leave the premises and to make them free from any occupation or the term agreed upon or after which the notice issue before it.
He can use the loaned property that the use of crop or pasture.
He may not transfer his right of occupancy or donate property to rent in anyone.
may not repeat, ie demand to the lender the expenses he had incurred for the use of property.
It undertakes, on pain of all damages, if any:
a) to ensure a good father, custody, maintenance and preservation of property loaned;
b) to use it only for the particular use hereby;
c) to return the property loaned to the owner, or fixed-term or prematurely, in accordance with the forms and conditions mentioned before;
d) to ensure compliance and maintenance of terminals that delineate plots lent.
were merely temporary holder of the property, the borrower will not be entitled to acquire by prescription by any time whatsoever.
The lender will not incur any personal liability under this contract.
In case of death of the borrower, the lender or their heirs and successors may terminate the loan for use in the form and time mentioned before.
For the implementation of these and their consequences, the parties elect domicile in their respective homes.
Made in good faith in two originals,
(Transmitted to the ML Notary Jean-Paul Vanheeswyck c / o Legal Garsou Villers-le-Bouillet)
============= ================================================== ==========
CONVENTION by private deed gratuitous.
BETWEEN THE UNDERSIGNED:
one hand, $
Hereafter referred to as "LENDER" and "owner".
and
other hand, $
Hereafter referred to as "BORROWER".
It was agreed as follows: ARTICLE ONE
.
The undersigned declares lend a hand to free use to the undersigned on the other hand, accepting the property described below:
$ COMMON.
- a dwelling house on Rue $.
$ and the furniture of the said property the list remain annexed
$ and the furniture of the said property, to wit:
- $
ARTICLE TWO: TERM.
This loan will use the $ ongoing.
is granted for an indefinite period to which the owner may terminate unilaterally and without having to give any reason by giving three months' notice by registered mail to the Post, the date of postmark of the start of the period.
ARTICLE THREE: OUT.
The borrower agrees to vacate the premises and to make them free of occupation at the term agreed, knowing that failure to do so, there may be judicially compelled, at his expense.
SECTION FOUR: DESTINATION.
The borrower can use the well as the use of dwelling house, excluding any trade. The property is recognized in good repair.
ARTICLE FIVE: FREE.
This loan is absolutely free to use.
ARTICLE SIX.
The owner is under no obligation under this contract.
The lender retains ownership of the thing lent, and it also retains possession that the borrower is merely in possession of the property and can not therefore be prescribed by any time whatsoever. $
The lender reserves the right to hold the thing together with the loaned borrower. ARTICLE
September
The borrower may assign his right, or give the property to rent to anyone.
ARTICLE EIGHT.
This contract is concluded exclusively between the parties hereto and is expressly stipulated that the commitments that form the bailment does not pass to the heirs of the lender or the borrower's heirs.
ARTICLE NINE: OBLIGATIONS OF THE BORROWER. The borrower undertakes
its side, barely any damages, if any:
a) to ensure a good father to the care, maintenance and preservation of the loan;
b) to use it only for the specific purpose of this Convention;
c) to make the property loaned to the owner the first application that it will make him the forms and deadlines established in section two above.
The borrower is required to enjoy the leased premises in "good man".
It will include:
to clean the chimneys, maintain a specialist heaters and central heating and water heaters descaling baths and hot water at least once a year and his exit ;
maintain and recharge, if necessary, decalcification and softening of water annually;
replace leather, rubber and defective valves sanitary facilities;
replace all windows, mirrors, pottery, tiles and floors that are cracked or broken;
preserve water supply installations against the effects and damage from frost;
maintain in good repair components and equipment and distribution pipes for water, gas, electricity, sanitation and ducts landfills, as ringing phone, etc. ...
ensure that the plumbing fixtures, pipes and drains are not blocked;
repair and, if necessary, replace any equipment, facility or conduct deteriorated during the lease term unless the damage is clearly due to age or an inherent defect in which case the borrower shall immediately notify the owner.
The borrower will therefore be required to perform at its expense all repairs that are necessitated by the use of property or conservation, except for major repairs to the roof and walls.
It will repair the damage during a flight.
No borrower to have in the building over a cat and a dog or other animals under threat of immediate termination of right of this contract unless prior written agreement the owner.
ARTICLE TEN: THE EXPENSES OF THE BORROWER. If
to use the thing, the borrower has some expense, he can not repeat it.
ARTICLE ELEVEN: property tax.
The borrower will pay the property tax levied on property subject matter hereof, and this for the duration of the agreement. It will ensure repayment to the lender, in the latter, within eight days of the request which will be made, even by simple letter. Otherwise, the amount due will bear interest at the rate of five per cent, without prejudice to the accrual.
ARTICLE TWELVE: INSURANCE.
The borrower must, for the duration of the loan, ensuring a police-type "fire insurance cover" the risk of fire and neighborhood. He will be able to justify the payment of bonuses to any request from the lender.
ARTICLE THIRTEEN: COSTS.
All costs and fees of these are paid by the borrower.
Done at x, in quadruplicate, the
===================================== ================================
C) Model ssp Dutch
LOAN
Between the undersigned: 1 ° The Lord
Hereafter "the lender" mentioned. 2 ° The Lord
Hereafter "the borrower".
agreed and adopted the following:
hereby gives the lender to the borrower who accepts the authorization to use the lender to real estate owned and hereafter.
Town / City
# #
The undersigned declare that their contract with Article 1875 of the Civil Code applies.
commodaat This is allowed and accepted to deal with today for an indefinite period, in which each party at any time and without any reason to give up, one end will be, provided the other party shall be by registered letter of notice to three months in advance but in respect of the lender at least for a period that allows the borrower to harvest the fruit waxing. The borrower for his part onzegt the right to use the property in question for crops whose duration exceeds one year #. The borrower acknowledges
out for good in a good state of repair to have received.
This agreement is entered into between the parties in view of the person of the borrower, the latter should therefore have no right to transfer or surrender.
Where Article 1876 Civil Code, this is commodaat fully discharge takes title, which the borrower expressly acknowledged and accepted.
Notwithstanding the provisions of the Civil Code, the lender will not be held liable for damage caused by the borrower or third parties incurred by reason of defects in the loan data well.
Aarschot on
Done in duplicate, each party acknowledges having received a copy. __________________________________________________
4. Jurisprudence
Civil Court of the October 7, 1997 Charleroi
leases. - WRITING WITH OTHER QUALIFICATIONS (gratuitous). - CONTRARY EVIDENCE. - ARTICLE 3, No. 2. - Serious, precise and CONCORD. I. - The Act of 7 November 1988 applies to seasonal contracts in progress when it comes into force. They are governed by the new provisions (if they do not meet the requirements of Article 2, 2 new). II. - Anyone who operates a rural property can prove the existence of the lease by providing proof of personal offer payment of rent. It is proof of the existence of the lease, unless the owner responds within six months by a request for conciliation before the magistrate. III. - If there is a writing of some other qualification (gratuitous), who operates a rural property can provide evidence of the existence of a lease and conditions by serious, precise and consistent, including bank withdrawals performed by operators, the area of disputed land, the owner's will return to his property without complying with the provisions governing agricultural leases, and the existence of previous agreements concluded for consideration. Rev. Rev.Not. May 1998, p. 241
Justice of Peace of Etalle March 2, 1991
The contract confers the right to use on a parcel of land and contains a revocation clause without cause, may because of this clause, be described as gratuitous rather than leases. Rev. Reg. dr., 1992, p. 238 ..
Justice of Peace of the February 6, 1985 Nivelles
The availability of land without the fixing of rent or payment of a nominal rent is not a farm lease. So is he, for example, when the rent is simply to repay property tax. Rev. dr. rur., 1985, p. 53 +
Court of Cassation on January 4, 1979 (see below)
Civil Court of the January 13, 1983 Liège
The obligation of the occupant of land to destroy weeds and thistles in a meadow was not considered a price paid in part-cons the right to exploit the land, since all owners of land (tenant or borrower) has an obligation to ensure a good family man that the field is maintained, including pulling weeds and thistles. Jur. Liege, 1984 495.
Court of Appeal of Nîmes (France) from February 11 1982
The Court of Appeal of Nîmes refused to recharacterize a notarized agreement providing for the free lease of a farm on the grounds that the contract was responding to a legitimate interest of the owner who did not wish to enter into a lease for rural he intended to sell his property, the contractor should pay no fee and the land was not cultivated. Juris-Data n '0618.
Court of Cassation on January 4, 1979
No price or low price. - Convention does not constitute a lease.
The convention with the enjoyment of a building without pricing or for a nominal price does not constitute a tenancy within the meaning of sections 1709 of the Civil Code and Section 1 of the Civil Code contains special rules for farm leases. Not
., 1979, 1 p. 501; RW, 1978-1979, col. 2591; R. Not., 1979, p. 264; Rec. gen., 1981, n '22576, p. 78;
= Summary Preview: FR and NL: http://CAS04011979.blogspot.com/
Contra: Cass. French., April 7, 1994, rev. dr. rur., 1994 57
Court of Cassation of 27 June 1975
exculpation. - Concept - Farming including arable lands and grasslands. - Heirs suited to exploit the land by one of them, on payment of compensation, and granting him the use of grasslands for compensation payable by them, pending the outcome of the liquidation and sharing. - Agreement constitutes a contract sui generis and not a farm lease.
The mandatory nature of the legislation on farm leases do not preclude the heirs of a farm business take these measures, an agreement for exclusive agricultural leases, to provide interim operation Standard business and goodwill among heirs, pending the outcome of the liquidation and distribution, since these measures are not intended to defraud the said legislation. (Civil Code Section contains the special rules for farm leases.)
Where, in order to ensure the normal operation of a farm inherited from their parents and maintain good relations between co-heirs, pending the completion of the liquidation and distribution, the heirs, without any intent to defraud the legislation on farm leases, load one of them temporarily from the exploitation of arable land for compensation payable by them, and he concede as well the personal use of grasslands, for compensation payable by him, the judge may conclude that the agreement so entered into is a contract sui generis and not a lease agreement to farm
RW, 1975-1976, col. 605 Central
Grondkamer (Netherlands), December 22 1958
A right of use has been granted a parcel of farm land without payment of an annual rent, however it was agreed that this land should be plowed and leveled. The contract was described as leases. After researching what was the cost of cultivation and compared this cost with the contract. it was found that these costs were more or less equivalent to the amount of rent so that the contract should be reclassified as lease to farm. De Pacht, 1959 n '2016.
Court Arnhem (Netherlands) of 28 December 1953
Similarly, it was held that a contract conferring a right of use on a farm was to be qualified farm lease as lessee, in addition payment of a florin and insurance premiums, also should be responsible for maintenance, renovation of old buildings and putting in a state (the basement of the hill which was surrounded by water). De Pacht, 1954, does 1566.
5. WARNINGS FROM THE AUTHOR'S BLOG
A . The author of this blog does not necessarily takes on its own the views presented, nor does it guarantee the accuracy of legal content, including sites which provides information access ...
B. See also:
And websites and Blogs of the author of this blog: http://leondochy.blogspot.com/
There is also briefed on how to register for "Legal
6.BLOGS OF "NEW LAWS of 2007"
(comments + legal texts direct access):
*** Leases: Blog in July 2007 replaced by a site: http:// www.angelfire.com / co / Dochy / BAIL.htm
The new divorce law: http://nouveaudivorce.blogspot.com/
Immunity home independents: http://nonsaisissabilite.blogspot.com/
Niet-beslagbaarheid woning zelstandige: http : / / nietbeslagbaarheid.blogspot.com /
RELEASE "2007" - HANDLICHTING "2007": http://mainleveehanlichting.blogspot.com/
Act program: Notifications tax: VAT): http: / / loiprogramme2007.blogspot.com /
Absence and judicial declaration of death: http://absence2007.blogspot.com/
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