Registration of the sale of an immovable property must take place within four (4) months of the signing of the private sales agreement (onderhandse verkoopovereenkomst / compromis de vente). Proportional registration duties of (in principle) 12% (12,5% in the Brussels and Walloon Region), calculated on the sale price, are then levied upon registration of this agreement.

In this context, the amicable termination (minnelijke ontbinding /résiliation amiable) of a private sales agreement would trigger a double taxation. The first taxable event would be the conclusion of the private sales agreement, which establishes the transfer of ownership rights to the buyer and triggers the levying of registration duties. The second taxable event would happen when the private sales agreement is amicably terminated and where the ownership rights on the same property are transferred again.

To avoid this unfair situation, a favourable tax regime is foreseen in the Flanders Region since
1 November 2007, consisting in the application of a specific fixed rate of 10 EUR.

In essence, instead of paying the proportional registration duties of 12%, the parties only pay a total of 20 EUR (i.e.10 EUR for the registration of the private sales agreement and 10 EUR for the registration of the agreement containing the amicable termination).

In case the private sales agreement was registered before the agreement containing the amicable termination, the parties must request a waiver (or refund) of registration duties on the private sales agreement. When granting the waiver or refund, the tax administration will withhold 10 euros for the registration of the private sales agreement.

To profit from this specific fixed registration duty of 10 EUR, following conditions must be met:

  • The sale has not yet been authenticated in a notarial deed.
  • All parties involved in the agreement declare this agreement amicably terminated. This declaration must be evidenced by a registered agreement, dated less than one year from the date of the first agreement (the 1-year period).

As we will see, it is this second condition that has retained the court’s attention in this case.

Amicable termination and condition precedent: a pragmatic approach

The dispute before the Court concerned the starting point of the 1-year period within which the declaration must be dated in case of the conclusion of an agreement affected by a condition precedent (opschortende voorwaarde / condition suspensive). Note that a private sales agreement affected by a condition precedent does not need to be registered right away. Therefore, the obligation to register within four months and to pay the registration duties only becomes due when the (last) condition precedent is fulfilled.

In the case at hand, a private sales agreement was concluded on 7 December 2005, subject to a condition precedent of the delivery of a positive soil certificate. This positive soil certificate was only delivered on 19 November 2014. As the condition precedent was fulfilled, the buyer submitted the private sales agreement to the registration office on 18 March 2015.

The tax bill was sent on 4 August 2015. However, on 9 September 2015, a settlement agreement was reached with the seller whereby the private sales agreement was amicably terminated. The settlement agreement was only registered on 21 September 2017.

Thereon, the question was raised whether the registration duties should still be paid.

The tax authorities considered the initial agreement concluded on 7 December 2005 as the starting point, from which it would follow that the favourable tax regime cannot apply given that the 1-year period had long since passed (i.e. deadline on 6 December 2006). Reference was made to multiple legal authors who considered the signing date of the private sales agreement as the starting point of the 1-year period. Some of these authors based their reasoning on the civil law principle that an agreement subject to conditions precedent already exists pendente conditione and that upon fulfilment of the conditions the agreement was deemed, under the Old Belgian Civil Code, to have existed since the signing. Under new art. 5.147 of the Belgian Civil Code, a condition precedent does not have, in principle, a retroactive effect. Parties may however derogate to this provision and confer a retroactive effect to the condition precedent.

However, in the case at hand, the Ghent Court of appeal (court case 2 November 2021, nr. 2020/AR/1424), and now confirmed by the Court of Cassation, did not agree with this limited reading of a regime precisely established to remedy unfair situations of double taxation and to have a less stringent, less formalistic and more tax-efficient refund. The advocate-general referred in his conclusion, among others, to the interpretation given by the tax authorities, where it is made clear that the 1-year period starts as from the fulfilment of the condition precedent. 

To require, as the Flemish tax authorities argued, that the amicable termination agreement must be concluded within one year of the conclusion of the initial agreement under conditions precedent would drastically reduce the scope of the preferential regime.

The Ghent Court of appeal also noted that the date of registration of the second agreement is of no importance and is not required within the same period. In the case at hand, the settlement agreement was concluded within one year after the delivery of the positive soil certificate (i.e. on 9 September 2015), thus being within the 1-year period. The fact that the settlement agreement was registered on 21 September 2017 is therefore irrelevant as the settlement agreement indeed entered into within this 1-year period. Nevertheless, we can only advise the parties to be careful to provide themselves with objective evidence of the date of the agreement.

Through its position nr. SP 24002 dated 29 January 2024, the Flemish Tax Authorities (VLABEL) have acknowledged this interpretation.


This decision may be surprising from a civil law point of view as well as from a literal reading of the Flemish Tax Code (VCF). Indeed, an agreement subject to a condition precedent already exists and it is only its performance that is suspended until the condition is fulfilled. Therefore, one could have thought that the 1-year period could have started since the conclusion of the initial sale agreement.

However, from a registration duties point of view, the fulfilment of the conditions as starting point also corresponds to the principle that the registration duties on an agreement subject to conditions precedent shall be levied upon fulfilment of those conditions.  

In any case, as in real estate matters certain conditions precedent easily take more than a year to be fulfilled, this decision it is to be welcomed from a practical point of view.

Source: Cass., 21 Dec. 2023, nr. F.22.0033.N. (Dutch only)