Public and administrative law
CEW's public law department defends the interests of Federia, which defends and federates estate agents. The real estate agents were banned from visiting properties for rent or for sale, a ban which Federia challenged in an interim injunction.
By order of 8 February 2021, the President of the Court of First Instance of Liège had ordered the Belgian State to allow real estate agents affiliated to FEDERIA to visit properties in accordance with the established protocol. The Belgian State appealed against this order. In a judgment delivered on 24 May 2022, the Court of Appeal confirms FEDERIA's position.
The Court ruled that FEDERIA's action was admissible and in line with its corporate purpose, which was distinct from the general interest. With regard to its jurisdictional powers, the Court recalls that it can assess the liability of a public authority, particularly with regard to discriminatory treatment.
As for the urgency, the Court confirms that the visit of properties by estate agents is an essential step in the exercise of their mission. As for the method followed by the Belgian State, the Court is critical of the way in which the latter legislates: " " It has already been firmly and indisputably stated that if a norm is not accompanied by implementing orders, it must stand on its own. There can be no question of using FAQs to determine the contours of decree provisions or orders and in particular to determine which behaviours are permitted and which are prohibited and subject to criminal sanctions. This highly questionable legal imbroglio justifies urgency within the meaning of Article 584 of the Judicial Code.
As for the appearance of right, the Court noted that the very essence of the profession of real estate agent is to be able to conduct commented visits of entrusted properties. These visits must be assimilated to visits of properties conducted by other service providers: " the activity of the estate agent during a property visit from that of the notary in a similar function or an architect or a surveyor or a housing company. All these sectors had protocols. There is no reason to assume that the protocol of one was better or more efficient than the other. "
The distinction created between estate agents and other professions is considered to be discriminatory, on the provisional side. The judgment rightly emphasises that guided tours of properties are essential to the profession of estate agent and that this profession cannot be treated differently from other liberal professions active in the property sector. It is also strongly emphasised that a public authority cannot legislate via FAQ.
CEW thanks the Federation of Estate Agents (www.federia.immo) for its confidence.
For more information, please contact Jean LAURENT (Jean.Laurent@cew-law.be) and Charline SERVAIS (Charline.Servais@cew-law.be), lawyers, CEW & Partners.