A right of superficies is the right to own or acquire in, on or over an immovable property of another person buildings, works, on plantations. The superficies right is a register property, so it is in principle transferable, and can be mortgaged.
Building rights are often used for transmission masts. But also when a lessee of a piece of land wants to build on it. In that case, a dependent building right is often used. Such a dependent superficies cannot be transferred other than pursuant to a contract takeover of the leasehold right. Contract assumption is only possible if the landlord also cooperates.
Without a building lease right, the owner of the real estate in which or on which a building is constructed automatically becomes the owner of the building. This is called accession.
A building right is established by notarial deed. A copy of the deed is then registered in the public registers. The deed sets out the agreements between the party entitled to the building and planting rights and the owner of the real estate (landowner). Parties are free to determine the duration of the building and planting right, which can even be perpetual. Upon establishment of the building lease right, the claimant generally owes a fee (the canon). This can be a one-off fee or a periodic one, which can then be redeemed for a certain period of time.
If you acquire a building lease right, transfer tax is due. Not only on the amount paid at that time, but also on the capitalised value of the canon payable in the future. When you buy the building rights, you take over the obligation to pay them from the seller and this is considered part of the consideration.
For information on building rights and the rights and obligations of the landowner and the claimant, please get in touch. We will be happy to help.
