The usual documents include the following:

• Letter of intent

At the start of the negotiations and in order to provide an exclusivity period, the parties will usually sign a letter of intent setting forth the basic principles of the transaction and the process to closing.

• Private sale and purchase agreement

Before the notarial deed of transfer is executed (and as the only sales document if the real property is acquired through a share transaction), a share and purchase agreement will be signed, which includes all the terms and conditions of the transaction. In the framework of an asset deal requiring an authentic notarial deed to effect the transfer toward third parties, this private agreement will be the document on which the notarial deed is based. This private agreement will often include conditions precedent to closing, such as soil investigation procedures, financing, and other conditions precedents. Such sales agreement is – in particular in the Flemish Region – sometimes replaced by a mutual sale and purchase option with the actual agreement of sale only coming into force upon the passing of the notarial deed following the exercise of the option.

• Due diligence report

The buyer (and sometimes the vendor in case of vendor due diligence) will perform due diligence on the property (or also the company holding the property if the transaction is a share transaction). This due diligence normally covers all aspects of the property such as zoning, environmental matters, and contract review, and will often be a combination of legal, technical, financial, and tax due diligence.

• Notarial deed

For the transfer of title to be transcribed in the mortgage register, it needs to be authenticated through the passing of a notarial deed.

• W&I insurance

Increasingly, in professional transactions, W&I insurances are entered into (mostly by the buyer). 

A seller usually gives the following warranties:

• Title
• Zoning
• Absence of litigation
• Authority, and usual representations and warranties as to shareholding, corporate, housekeeping, and tax for share transactions

Usually, these warranties are limited by the information disclosed in the data room provided to the buyer who will not be entitled to claim a breach of the warranty if the base of the claim was adequately disclosed. In share deals, warranties that are given by the seller are usually much more extensive.

The sale is legally binding between the parties if and when there is agreement on the price, the object to be sold and other conditions deemed essential by the parties. An asset sale is only binding on third parties in good faith having a competing claim if the sale has been transcribed in the mortgage register (which requires an authentic deed).

Title is transferred at the time indicated by the parties in the sales agreement. For asset transactions, title is normally transferred at the time of the passing of the notarial deed.

The buyer usually pays for the following:

• Buyer’s agent’s fees
• Legal costs 
• Due diligence costs for consultants
• Registration duties and/or VAT (for new buildings)
• Notarial and mortgage costs  

The seller usually pays for the following:

• Seller’s agent’s fees (if any)
• Vendor due diligence fees (if any)
• Legal costs 
• Capital gains tax
• Mortgage release costs