New Anti-Money Laundering Regulation for real estate agents in force as of 1 July 2022. What changes for you as a real estate agent?

The Royal Decree of 1 April 2022 was recently published in the Belgian Official Gazette, approving the regulations implementing the Act of 18 September 2017 on the prevention of money laundering and terrorist financing and on restricting the use of cash, with regard to real estate agents.

The new Anti-Money Laundering Regulations enter into force on 1 July 2022 and thereby repeal the old 2013 regulations. They indicate how real estate agents must comply with their obligations under the anti-money laundering controls imposed on them, as set out in the currently applicable regulations, namely the Anti-Money Laundering Act of 18 September 2017.

To whom do the anti-money laundering regulations apply? 

Unlike the current regulations, the new regulations will apply only to real estate agents acting as intermediaries or property managers, and therefore not to real estate agents acting as syndics.  

Intermediaries and Property Managers 

Indeed, the regulations (Article 1, 2°) link the definition of real estate agent to Article 5, § 1, 30° of the Anti-Money Laundering Act (the real estate agents referred to in Article 2, 5° and 7°, of the Act of 11 February 2013 organizing the profession of real estate agent, who are registered on the roll or on the list referred to in Article 3 of the same Act or on the roll or on the list referred to in Article 3 of the Act of 11 May 2003 establishing the federal councils of land surveyor experts;), and no longer to Article 2, 4° of the Act of 11 February 2013 organizing the profession of real estate agent.

• intermediaries: those who, on behalf of third parties, provide decisive assistance with a view to concluding an agreement for the sale, purchase, exchange, letting or transfer of immovable property, real property rights or business assets
• property managers: those who, on behalf of third parties, carry out activities relating to the management of immovable property or real property rights, other than the activity of a syndic

Clientele of real estate agents 

We find the same distinction in the definition of the clientele of the real estate agent – where management in the context of co-ownership (syndic) is likewise excluded (Article 2).

In summary, the clients within the scope of the intermediary assignment are the persons with whom the real estate agent has concluded an agreement concerning:

• mediation with a view to the sale, purchase, exchange, letting or transfer of immovable property, real property rights or business assets.
• or the management of immovable property or real property rights, other than the activity of a syndic.

But also the persons who, without having concluded an agreement with the real estate agent for this purpose, enter into an agreement through that agent’s mediation regarding one of the above-mentioned purposes.

How do you, as a real estate agent, comply with those anti-money laundering obligations?

Probably the most important aspect of these new regulations is the fact that the regulation maintains the presumption that the real estate agent complies with his obligations laid down in Articles 7 to 35 and 37 to 46 of the Anti-Money Laundering Act if he uses the procedures and tools provided by the Professional Institute of Real Estate Agents in an ‘appropriate’ manner.

Moreover, the regulation expressly confirms that the guidelines, procedures and internal control mechanisms do not need to provide for an independent audit function (Article 7).

The new regulation also further elaborates on the general due diligence obligations of the real estate agent, including how the timing of identification and verification of clients’ identities must be understood precisely (Articles 3 and 4). 

The regulation also provides clear guidance on which high-risk factors apply to clients (natural persons and legal entities – Article 5) and what exactly the high-risk factors are in connection with transactions (atypical transactions – Article 6). 

Finally – and importantly – the regulation very briefly refers to the restriction on cash payments – specifically which information must be included in the sale agreement for payment of the price or the advance. (Article 8 – The sale agreement, drawn up by the real estate agent, must state the number of the financial account that was or will be debited to transfer the price and, where applicable, the advance, as well as the identity of the holders of those accounts, or contain a declaration by the parties stating this number and, failing that, the manner in which it will be financed )

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