Rural Flanders questions reformed property law

In February 2020, the Belgian federal government reformed property law, more specifically, Book III of the Civil Code on goods. Later, Landelijk Vlaanderen, an organization that promotes the entrepreneurship of landowners in rural Flanders, asked for clarification from the government as the law allows people to access one’s property in special circumstances, such as to retrieve balls or pets. 

Article 3.67, §3 of the Civil code struck confusion across the country and had farmers questioning the interpretation regarding people’s right to access “unused” or “undeveloped” land. The paragraph reads as follows: 

“Where an undeveloped and uncultivated property is not closed off, anyone may enter it unless it causes damage or harms the owner of the parcel, or if the owner has made it clearly known that it is forbidden for third parties to enter the land without his permission.”

 

Worried that Belgian citizens might interpret it the wrong way, Landelijk Vlaanderen decided to officially ask for clarification from the government. While it is true that agricultural land may look undeveloped at times, this is only because fields aren’t sown every year. Allowing people to trespass on that land would cause major damage on the fields.

 

In fact, a clarification was made by the former Minister of Justice, Vincent van Quickenborne. He explains that the article focuses on “legal tolerance”, acts performed by third parties on an owner’s property, in the case of an unfenced property that is unbuilt and uncultivated. He adds that the use of the term “uncultivated” is done on purpose to exclude all forms of agricultural land. Thus, one could not invoke the paragraph to enter a meadow or a field, even if they’re not in use that year. Lastly, the owner of a parcel of undeveloped land can also prohibit access by erecting a sign or a fence.

 

Needless to say, Landelijk Vlaanderen organization was not pleased by this way of fact-checking. The former president of the organization, Christophe Lenaerts, deemed it insufficient. He has asked the federal government to clearly outline the damage caused to property rights and to thoroughly revise this legislation. 

 

But how did we get there? 

 

In Belgium, property rights are absolute. Nevertheless, the legislator established limits to that rule. These specific limits can be explained historically. Belgium used to be ruled by King Napoléon Bonaparte who made the first Civil code in 1804. At that time, property rights were “absolute and exclusive”. Today, it seems like Belgian society has traded individualistic interests of owners for general or public interest. Article 3.67, §3 is part of the property rights’ limitations. The government justifies its adoption by stating the individualistic dimension is historically and economically outdated. 

 

Still, the legislator emphasizes the requirements for one behavior to be considered lawful. One: passage on the parcel may be refused if it causes damage. Two: the land cannot be subject to acquisitive prescription. Three: a third party is prohibited from appropriating goods found on the land. Some authors say this “legal tolerance” basically allows you to wander around someone else's wasteland.

 

To this day, no changes have been made regarding article 3.67 of the Belgian Civil Code. Rural Flanders remains unsatisfied. Belgium has recently elected a new government, will it pay attention to rural Flanders’ concerns?