Magalie Vandenbroucke - Academic year 2019 - 2020/Ghent University


CHAPTER II. THE DELIVERY

41. The core of this concerns delivery. However, the handover does not only take place when it comes to apartment buildings, but also with the construction of detached houses or other buildings, a handover must take place.However, in the context of this master's thesis, the focus is exclusively on the delivery of the apartment buildings. In what follows, we will discuss what the delivery exactly entails (2.1), how the delivery comes about (2.2), who the parties involved are (2.3) and finally what the exact legal consequences are (2.4). In each case, it will be checked what the rules are under Belgian, French and Dutch law.

2.1 What is the delivery?

2.1.1 Under Belgian law

42. GENERAL – Delivery, receipt and acceptance are three concepts that are often used interchangeably, but which in principle cover a different meaning:

- Acceptance is the unilateral, substantive legal act whereby the contractor makes the construction works available to the client, so that the latter can receive the works for assessment and acceptance. (79) Acceptance implies the transfer of ownership of the structures and can thus be compared to the seller's obligation to deliver. 

- Acceptance is the substantive legal act by which the client actually receives the construction works and thus effectively takes possession of the property. 

- The acceptance is the unilateral legal act whereby the client approves the construction works and acknowledges that the contractor has carried out the works in accordance with the agreement, the plans, the specifications, the rules of the art and with the prescribed materials. As will be discussed later, the acceptance means that the contractor and the architect no longer bear any liability for the slight visible defects in the structures. However, the liability remains with regard to minor hidden defects and serious stability-threatening defects, for which the ten-year liability of the contractor and architect applies pursuant to art. 1792 BW (infra 2.4.1.3). 

Delivery is thus a contractual obligation on the part of the contractor, while acceptance and acceptance are rather contractual obligations that exist on the part of the client or client. However, when reference is made to 'delivery' throughout the further course of this, this means the combination of delivery and acceptance.

43. Common law mainly refers to receipt and acceptance en In the Apartment Act, a number of articles refer to the (provisional) delivery. However, neither instrument provides a clear description or definition. Nor is a distinction made between provisional and final acceptance. The common law principle is therefore that the delivery takes place in one phase, namely by the delivery of the completed works by the contractor simultaneously with the receipt and approval of the works by the client.

44. Contrary to this common-law principle, two-stage delivery is the more common practice in apartment co-ownership and in the construction industry in general. We work with a provisional delivery and a final or final delivery. This distinction is also explicitly made in the Breyne Act and its Implementing Decree. When a structure falls within the scope of these instruments, it is therefore mandatory to work with double delivery. (89) As already mentioned (supra no. 23), apartment buildings come under the scope of the Breyne Act, which means that a double delivery will have to take place. However, it should be noted that the delivery of the privatives is a separate legal act that exists alongside the delivery of the common parts, since different parties are involved each time (infra 2.3.1). In concrete terms, there will therefore be four deliveries for apartment buildings: a provisional delivery of both the private and common parts and a final delivery of both the private and common parts.

45. However, there is no clear description of what content covers both concepts in the Breyne Act or its Implementing Decree. It is therefore up to the case law and legal doctrine to give further substance to this. The following paragraphs further explain the distinction between provisional and final acceptance in the context of apartment co-ownership.

46. PROVISIONAL ACCEPTANCE – The provisional acceptance of a construction work concerns the determination of the completion of the works en has the sole purpose of verifying that the plans and specifications were followed by the contractor(s).

The provisional acceptance implies that the good in question is usable according to its destination.  Please note: it is therefore possible that the building is not yet completely finished; it is enough that it is habitable.

47. In the case of provisional acceptance, it is possible to formulate a remark (ie the identification or notification of a defect) or a reservation (ie the identification of a probable, suspected or doubtful defect, the development of which often has to be awaited). However, these comments should only refer to minor defects and should be limited in number. If, on the other hand, there are serious defects or a large number of defects, this may be a reason for the client to refuse acceptance.96 The question of whether the client can refuse provisional acceptance may not depend on the arbitrariness of the parties, but must be assessed objectively. In the event of a dispute, the parties must call upon an expert.

BAERT stated that there could be five categories of comments. It may include comments regarding:

- deviations from the plans, the specifications and the agreement;

- defects in the construction;

- defects in the materials;

- defects in the finish;

- accidental damage that may have an impact on safety, durability, maintenance, utility value, habitability or nuisance.

48. Since this delivery is only provisional, it does not in any way imply acceptance of the works. The liability for minor visible or hidden defects is thus not yet covered and the ten-year liability period for the contractor and the architect for serious defects that threaten stability does not start either (infra 2.4.1.3). In principle, therefore, acceptance of the works will take place upon final delivery, although this concerns a rule of supplementary law. The parties are still free to agree that the provisional delivery already constitutes an acceptance, so that this will nevertheless be the starting point for the ten-year liability period.

The provisional delivery does mean that the client has taken possession of the construction works, as a result of which he will bear the risk from this moment on (infra 2.4.1.1). A possible compensation or fine due to delay in the work can no longer be claimed from this moment on.



49. FINAL ACCEPTANCE – Final acceptance or final delivery, on the other hand, is the actual acceptance of the works. On the one hand, this implies an acknowledgment of the fact that the works have been executed in accordance with the contract and the rules of the art and on the other hand that the comments made during the provisional delivery have been corrected. In this way the contractor is released from his obligations towards the client, although the contractor can still be held liable for minor hidden defects and serious stability-threatening defects, which fall under the ten-year liability period in accordance with Art. 1792 Civil Code (infra 2.4.1.3).

50. GUARANTEE PERIOD – A guarantee, warranty or maintenance period of one year must expire between the provisional and the final acceptance. The rationale behind this is that certain defects often only occur after a certain period of time en In this way it can also be checked whether the building can withstand a winter without any problems. During this guarantee period, the contractor must also repair, finish and/or further check minor shortcomings or defects for which a remark or reservation was made during the provisional acceptance (infra 2.4. 1.2). 

51. The final acceptance therefore always takes place one year after the provisional acceptance. With regard to apartment co-ownership, however, a special requirement has been included in Article 9 of the Breyne Act. This article stipulates that the final delivery of the common parts must take place before the final delivery of the privatives in order to ensure the normal habitability of the privatives. However, this is not prescribed with regard to the provisional acceptance, which implies that the provisional acceptance of the privatives can take place before the provisional acceptance of the common parts takes place. Obviously this does not mean that the common parts do not have to show a certain degree of completion before provisional acceptance can take place, as this is necessary in order to be able to actually and usefully put the privatives into use.