Older apartment buildings and asbestos often go hand in hand. Anyone who built in the 1960s or 1970s used the material as a matter of course in roofs, façades, insulation and technical installations. As soon as such a building needs to be renovated or repaired, asbestos surfaces, and with the asbestos a series of legal questions specific to co-ownership. Who is responsible? Who pays? And what role does the syndic play? This article untangles the main knots.
Private or common part?
The first question when asbestos appears in an apartment building is one of classification: is it a private part or a common part? That distinction determines who is responsible for the management, the costs and, where applicable, the removal or remediation.
In principle, the deed of division (basisakte) provides the answer. It specifies which parts of the building are private and which are common. Asbestos in the individual unit, for example in a floor covering or an interior wall within the apartment, is generally a matter for the co-owner concerned. But practice is not always so clear. Asbestos is often found precisely in those elements that serve the entire building: the roof, the façade, the utility shafts, the boiler room and other technical rooms. Those belong to the common parts, and then the association of co-owners (VME) comes into play.
What if the classification remains unclear? Here a glance across the border is illuminating, with the necessary caveat. French case law has ruled that asbestos in floors and walls whose classification is not clearly established must be regarded as common, referring to the safety function that the asbestos originally served for all co-owners (Cass. fr. 7 May 2003). That reasoning cannot simply be transposed to Belgian law, but the underlying idea is useful: if the classification is doubtful and the element performs a function serving the community, the balance tips towards a common part. If, on the other hand, the asbestos is demonstrably in the private portion, it remains private.
Consequence for the allocation of costs
The classification is not a theoretical exercise: it determines who pays. If the asbestos is in a private part, the co-owner concerned bears the costs of management and removal alone. If it is in a common part, the cost falls on the VME and is apportioned among the co-owners according to their shares in the common parts. A roof renovation or an intervention on an asbestos-containing utility shaft therefore in principle affects all owners in proportion to their shares, even those who are never personally troubled by the asbestos. That is precisely why it is worth carefully determining the classification before decisions are made and invoices are sent, because it sometimes allocates substantial amounts.
The role and liability of the syndic
The syndic is the pivotal figure in the management of the common parts, and therefore also in the asbestos file. As contractual agent of the VME, he must best represent the interests of the association. Enhanced diligence may be expected from a professional syndic.
Case law has sharply defined that expectation. A professional syndic is deemed capable of suspecting the presence of asbestos in a building erected in the 1960s or 1970s. At the same time he is not an asbestos expert: he is not expected to make a technical assessment of whether a specific intervention in, for example, the ceiling of a boiler room will release fibres (Brussels 20 October 2017). The threshold is therefore not technical perfection, but attentiveness. What can be held against him is that he does not consider possible asbestos in an older building and does not put the matter on the agenda of the general meeting before renovation or maintenance works take place.
Concretely, this means that the syndic must actively raise the asbestos question: is an asbestos inventory being drawn up, is a specialised asbestos removal contractor being used, and is the contractor expressly informed of the possible presence of asbestos? Anyone who fails to raise that question beforehand risks the works starting without anything about asbestos being put in writing, followed by endless discussions about additional works and about what the contractor ought to have seen. The syndic is judged in all of this as a normally diligent professional manager: he is not liable for the mere existence of asbestos, but he is liable when he neglects his management duties. Also important is the distinction the court drew: the liability of the VME differs from that of the syndic. These are two distinct liabilities that do not automatically coincide.
The asbestos certificate obligation for the common parts
Since the introduction of the asbestos certificate, an express obligation has been added. A separate certificate obligation applies to the common parts of apartment buildings, with a deadline of 1 January 2027. In this respect, the common parts form a sector in themselves: a separate asbestos inventory certificate is issued for them, independent of the certificates for the individual units. Having that certificate drawn up in good time and informing the co-owners falls within the syndic's management duties.
Two certificates when buying an apartment
Anyone buying an apartment should know that two different certificates are involved. The asbestos certificate for the private unit covers only the apartment's own construction. The certificate for the common parts covers the roof, the façade, the stairwell, the technical rooms and the rest of the common building. The two are entirely separate. A valid certificate for the private unit says nothing about the asbestos situation of the common parts, and vice versa. As a buyer, you would do well to request both and not to assume that one covers the other. If you discover concealed asbestos after the purchase, you can still fall back, under the classical conditions, on the warranty against hidden defects.
The asbestos inventory of the VME as employer
There is another inventory that becomes relevant as soon as the VME has works carried out: the labour-law asbestos inventory. When a VME has staff on its payroll, for example a caretaker, the question arises whether, as an employer, it must draw up an asbestos inventory for the places where that staff works. Case law draws a line here: the mere fact that a caretaker held a key to a room containing asbestos did not make that room a habitual workplace, so that the employer's obligation to draw up an asbestos inventory did not apply in that case (Brussels 20 October 2017). Anyone who does have a habitual workplace for their staff cannot escape it, not even by entrusting the works to an external contractor: the employer's labour-law inventory obligation remains in place. For the VME planning renovations, the message is to keep an eye on both tracks: the Flemish asbestos certificate and the labour-law inventory.
How these co-ownership aspects fit into the wider set of asbestos obligations on sale, purchase, letting and renovation is set out in our guide to asbestos in real estate.
How Reius Advocaten can assist you
Are you dealing with an asbestos file in your co-ownership, as a co-owner, syndic or prospective buyer? Reius Advocaten helps you correctly assess the classification, the allocation of costs and the liabilities, and assists you where necessary at the general meeting or in proceedings. Feel free to contact us at info@reius.be or via the contact form.