Service charges when an apartment is sold: who pays?

The preliminary sale agreement (compromis) is signed, the deed is scheduled in three months, and a call for funds arrives in the seller’s name. Or the other way round: you have just bought, and the syndic (the building’s property manager) is asking you for a share of the roof voted before you arrived. Either way, the same question: who pays?

The answer is in article 3.94 of the Civil Code, and it is the same in Flanders and in Brussels. Many pages on the subject are written for France, where the system is different. Here is the Belgian rule, question by question.

Who pays the ordinary charges during the sale?

The buyer, from the day they have use of the common parts (art. 3.94, § 2). Before that day, it is the seller.

Ordinary charges are the recurring expenses: building insurance, maintenance of the common parts, lift contract, heating of the common parts. In practice, taking possession usually coincides with signing the authentic deed, and notaire.be takes that date as the general rule. The syndic then splits the financial year in two and apportions pro rata. The annual service charge statement will show each party’s adjustment.

In practice, if the buyer moves in before the deed, record the date of taking possession in the preliminary agreement. That date sets the switchover.

And works voted before the sale?

They are borne by the buyer if they are called after the sale, unless agreed otherwise. This is the rule that surprises people most.

Article 3.94, § 2, covers four categories of debts decided before the fixed date of the transfer of ownership but whose payment is requested afterwards:

• expenses for preservation, maintenance, repair and renovation decided by the meeting or the syndic;
• calls for funds and the cost of urgent worksGlossaryNecessary and urgent works to the common parts. If the general meeting cannot reach the required majority, any co-owner may obtain court authorisation to carry them out alone, at the association's expense. See the glossary;
• the costs of acquiring common parts;
• the association’s certain debts arising from an earlier dispute.

Between seller and buyer, the incoming co-owner bears them. But the text says so itself: this allocation applies ‘without prejudice to any contrary agreement’. The preliminary agreement can therefore put a façade voted last year on the seller, and that is often what the buyer negotiates on discovering the minutes.

Let us take a typical case, built for the example: an apartment in Leuven, preliminary agreement signed on 10 March, deed on 20 June. In December, the meeting voted to replace the boiler, payable in two calls, in April and in October. Without a clause, both calls fall to the buyer: the decision precedes the sale, the payment follows it. With a clause, the seller can take the April call, or even both.

What happens if a meeting takes place between the preliminary agreement and the deed?

The buyer only pays the extraordinary charges and calls for fundsGlossaryRequest for payment sent by the syndic to the co-owners to top up the working capital fund or the reserve fund. With each call for funds, the syndic states which portion will go to the reserve fund. See the glossary voted at that meeting if they held a proxy (volmacht / procuration)GlossaryDocument by which a co-owner arranges to be represented at the general meeting by a proxy holder named personally. No one may accept more than three proxies unless their own votes and those of the co-owners they represent do not exceed 10% of the total, and the syndic may not act as proxy holder. See the glossary to attend it (art. 3.94, § 2).

The logic is simple. Until the deed is executed, the seller remains the owner and a member of the general meeting (GM). If the buyer could not give their view, the bill cannot be imposed on them. If they held the proxy, they could vote, and they pay.

Our reading: as soon as a meeting is called between the two signatures, the buyer has every interest in asking for the proxy. It is the only way to weigh in on a decision they will fund in the following years anyway.

Does the seller get their funds back?

Partly. For the working capital fundGlossaryTotal of the advances paid by the co-owners, as provision, to cover recurring expenditure such as heating and lighting of the common parts or management fees. It is held in a separate account in the association's name. See the glossary, the seller is a creditor of the owners’ association (VME/ACP) for the period in which they no longer have use of the unit; the syndic reimburses it and calls the buyer’s share (art. 3.94, § 5).

For the reserve fund, the answer is no. The seller’s share remains the property of the association. Only a clause in the preliminary agreement can provide for the buyer to reimburse it to them, and that agreement concerns only the two of them. The details of both funds are in the page on the working capital and reserve funds.

What does the notary do with the seller’s arrears?

They withhold them from the price. When the deed is signed, the notary withholds the seller’s arrears of ordinary and extraordinary charges, together with the recovery costs and the cost of providing the information (art. 3.95). They first pay the preferential creditors, the mortgage creditors and those who have had an attachment made.

If the seller disputes the amount, the notary notifies the syndic by registered letter within three working days after the deed. The syndic then has twenty working days to have a third-party attachment made; failing that, the notary can pay the seller. Where the unpaid debt is old, the page on a co-owner not paying describes the steps to take earlier on.

When must the syndic reply?

Twice, at two moments. Before the preliminary agreement, the seller, their agent or the notary asks the syndic for the state of the funds, the arrears, the calls decided, the proceedings under way, the minutes of the last three meetings, the statements for the last two years and the latest balance sheet. The syndic has fifteen days (art. 3.94, § 1).

Before the deed, the notary writes by registered letter to obtain the list of expenses voted but not yet called. The syndic has thirty days. The cost of this information is borne by the seller (art. 3.94, § 4).

Six situations, and what to do

In short: almost everything is decided in the preliminary agreement. Once it is signed without a clause, the default rule applies, and it favours the seller more often than people think.