What should you do if a buyer, seller, tenant or landlord is deemed to ‘lack legal capacity’?

What should you do when dealing with a buyer, seller, tenant or landlord deemed “legally incapable”? Can you have a person deemed “legally incapable” sign a sale agreement or tenancy agreement? How should you proceed?
First of all, you should be aware that for such a document to be legally valid, all parties must be deemed to have legal capacity.
What if this is not the case? In that event, you cannot deal directly with the person deemed legally incapable, but must instead deal with their provisional administrator.
Let us take a closer look.

Who is considered a “legally incapable” person?

• people with mental illnesses
• people with intellectual disabilities
• accident victims or people with a physical disability who are no longer able to manage their assets
• elderly people (if they have an impairment)

What is a provisional administrator?

Article 488/1 of the Civil Code states: “An adult who, due to their state of health, is wholly or partially unable to manage their own financial interests properly without assistance or another protective measure, even temporarily, may be placed under protection if and insofar as the protection of their interests so requires.”

In other words, when an adult is vulnerable, they will require the protection of the law. A provisional administrator will then be appointed for them by the Justice of the Peace for a fixed or indefinite period.
To do so, the following procedure must be followed:

1. the application: the judicial protection of a legally incapable person may be requested by the person themselves, a member of their family or any interested party. The application must be filed with the registry of the Justice of the Peace for the vulnerable person’s place of residence.
2. the detailed medical certificate: the application must be accompanied by a detailed medical certificate. It must be dated no more than fifteen days before the application is submitted.
3. the proof of residence: proof of the person’s residence must be attached to the application.
4. the summons: once these documents have been submitted to the court, the Justice of the Peace summons the legally incapable person and their trusted representative.

In a property context

You must be vigilant and verify the administrator’s powers by requesting the decision of the Justice of the Peace (specific authorisation is required when buying or selling a property with a legally incapable person).
In addition, check whether a provisional administrator has been appointed (you can check this at https://www.ejustice.just.fgov.be/doc/rech_f.htm ), as the legally incapable person may have granted a power of attorney before becoming legally incapable. An authorised representative will then have been appointed by notarial deed and may represent the vulnerable person.

Now that you are informed about buyers, sellers, tenants or landlords deemed “legally incapable”, you may wish to learn more about the latest developments in the property sector. We invite you to browse our blog, which is full of interesting articles. And if you would like to daydream about properties, view our available properties.