Appurtenance to a house or separate real estate?
In stamp duties and inheritance taxes we sometimes come across the concept of
'appurtenance'. This concerns a construction that is an afterthought to a main
building. But when does a structure cease to be an afterthought and becomes
The term "appurtenance" sounds outdated. We come across the term in the oldest
tax laws in our country
the laws on stamp duties and inheritance taxes. In the
regime of stamp duties, the term is discussed, for example, when purchasing a
home with reduced stamp duties (the so-called 'small description'). The reduced
rate does not only apply to the house itself, but also to the appurtenances.
For the Flemish tax authorities (Vlabel) there is only one attachment for stamp
duties purposes, if:
the appurtenance is an afterthought of the home, and not vice versa;
the appurtenance is part of the residential function (eg garage, garden, ...)
and it is not included in an economic activity; and
the appurtenance meets certain requirements in terms of location:
if it concerns land, the land must adjoin the plot on which the house is
if it concerns a garage, the garage must be located in the immediate vicinity of
In the Flemish inheritance tax ('inheritance tax') the concept of the exemption
for the surviving partner is reflected. After all, the surviving partner does
not have to pay inheritance tax on the part of the family home that he acquires
from the first deceased partner and that exemption relates to the family home
'with appurtenances. And it is precisely on such a situation that the Court of
Appeal of Ghent had to rule at the beginning of 2021.
Mr X and Mrs Y are married. They have a prenuptial agreement that provides for a
separation of property, but during their marriage Y brings a piece of land that
she had received from her mother into the marital community. It is about 80
acres. After that donation, Y drafts a will in which she states how the land
should be divided among her three children. But when the land is transferred to
the community, a clause is also introduced whereby the surviving partner can
choose to acquire immovable property upon the death of the other partner. Mrs.
dies and Mr. X decides to use this clause to obtain the full ownership of the
family home and the usufruct of the land.
However, at the time of taxation there is a discussion about the woodland.
According to X, the two original plots the lot on which the family home is
located and the lot that was divided among the children are to be considered
as a whole, which must be regarded as the house with appurtenances. The
exemption from inheritance tax therefore applies to the whole estate.
First, a mediator is appointed. He determines that next to the lot of the family
home there is a woodland. Of the 80 ares, the mediator wants to qualify another
17 ares as appurtenances, but the regional director rejects that proposal.
The regional director looks at the legal division by will, whereby the three
pieces of land in the inheritance declaration were each separately estimated at
245.000€. The lots are adjacent to another street, and they have a considerable
surface area, with a wide street width.
For the regional director this is not
a normal appurtenance.
What does the law say?
The dispute is submitted to the Court of Appeal in Ghent, which starts by
reviewing the legal provisions. The terms 'home' and appurtenance actually
originate from stamp duties, where we read: a home is defined as the house or
the whole or part of a floor of a building that serves or will serve as housing
for a family or one person, with, where appropriate, appurtenances acquired at
the same time as the house, the whole or part of a floor. This is further
clarified in a Royal Decree of January 11, 1940 (!) : any building or unbuilt
immovable property that, by its nature, is considered to be an appurtenance for
the purposes of Articles 53, 2° and 57 of the Code of Registration Rights when
based on its location, its surface and its value constitute a 'normal
appurtenance', depending on the case, either of the house or the floor or the
part of the floor obtained under the system of Article 53, 2°, or of the house
to be erected on the land purchased under the system of Article 57.
A matter of fact
The court uses Google Earth and Google Street View to assess the concrete
situation. The court sees via Google Earth that all lots in question contain
trees, which together can be regarded as forest. Via Google Street View, the
Court can also see what the mediation officer wrote, namely that part of the
forest is closed with a wire fence. Beyond that closure, the forest is
accessible from the public road. It therefore comes down to the fact that the
whole of the house-with-garden is located within a space that starts at the
front of the street and is demarcated at the back (between trees) with a fence.
That part immediately connects to the house and that land is used by the
residents as a garden.
However, the Court is of the opinion that the forest beyond that closure cannot
be regarded as a 'normal addition' to the home. The Court therefore follows the
solution of the mediation officer and considers only the approximately 17 acres
as a normal appurtenance.
The main reason that the Court considers that land as an appurtenance is that
this part of the land has for long formed a unit with the house. The fact that
part of it, like the unfenced part, is planted with trees is irrelevant in the
The Court further considers that the surface area (17.08 ares) is not
unreasonably large when viewed as a whole. It acknowledges that the resale value
of the land is significant, but that has to do with the fact that it is a
residential area. That in itself does not affect the fact that the area
concerned was used as a garden.
As mentioned, it is always a matter of fact. We deduce from this interesting
judgment of the Court of Appeal of Ghent that the value of the appurtenance, the
fact that it concerns separated cadastral parcels or what is on the lots, is
relevant but not decisive. We also deduce that it is much more important that
the appurtenance forms an actual whole with the family home. A closure can then
be a very good indicator.