The notary public has the monopoly to organize a public sale of real estate. If real estate is sold through a public auction website, such sale can be annulled.
In its judgment dated 9 June 2016, the Belgian Supreme Court confirmed the legal monopoly of a notary public to organize and sell real estate through a public sale (“vente publique/openbare verkoop”). A public sale implies that the notary awards the property to the highest and latest bidder.
In the case at hand, a seller sold its property through a public auction website. Bids were submitted and the property was awarded to the highest and latest bidder. However, discussions arose between the parties regarding the validity of the sale, and the buyer requested the court to annul the sale. The buyer argued that the sale was to be construed as a public sale, and that under Belgian law only a notary public may organize such public sale. The Ghent Court of Appeals and the Belgian Supreme Court followed the reasoning of the buyer. Firstly, the court clarified when a sale has to be considered a public sale:
- a public is physically or virtually brought together, to which is given the opportunity to submit competitive bids;
- any and all bids are disclosed to other bidders, without necessarily disclosing the identity of the bidders; and
- it is clear from the start that goods will be awarded to the highest bidder.
If the above conditions are met, the public sale of real estate can only be validly concluded with, and requires the intervention of a notary public. The judgment does not explain how the challenged sale through the public auction website could have been validly concluded. However, the Supreme Court judgment is a clear warning for all sales of real estate through a public auction website.
