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Magalie Vandenbroucke - Academic year 2019 - 2020/Ghent University
2.2 How is the delivery effected?
2.2.1 Under Belgian law
58. The initiative for completing the delivery comes from the seller or the contractor. He will send a written request to the individual co-owners to proceed with the delivery of the privatives on a certain date. If the individual co-owners accept this request, a tour of the entire building will take place on the agreed date in the presence of various parties (infra 2.3.1). At the end of this tour, a report of completion will be drawn up. In this official report, the individual co-owners will either approve, accept with reservations and/or remarks, or refuse the construction work that has been carried out.
With regard to the delivery of the common parts, the contractor must address the request for delivery to the property manager, who hereby represents the VME.
59. If an individual co-owner or the property manager fails to comply with this request for completion, the contractor will have to send a reminder. This reminder must be in accordance with art. 2, §2, second paragraph of the Implementation Decree to the Breyne Act, be done by bailiff's writ. If the individual co-owner or the syndic has not appeared within fifteen days after this reminder with a view to delivery, the works are presumed to have been delivered.
60. In accordance with the provisions of common law, the parties are free to determine whether delivery will take place expressly or tacitly. A tacit acceptance can be inferred from certain circumstances. In each case, it is the court of fact that must judge in an unassailable manner whether or not the circumstances qualify as a tacit acceptance. The payment of the amount still due and the occupation of the property are some examples of this. However, it should be noted that not every commissioning can simply be regarded as tacit delivery, as it is possible that the client was forced to proceed with commissioning. However, there are also many cases known in case law in which the tacit delivery was not accepted, for example in the case of partial payment or the taking into use of the property and its payment, but in which a claim for interim relief was also initiated with a view to the appointment of an expert, etc.
61. If the Breyne Act applies, art. 7, g) that the manner in which the delivery will take place must be expressly stipulated in the agreement, under penalty of nullity. However, the Implementation Decree to the Breyne Act specifies this even more and stipulates that delivery can only take place by means of a written and contradictory deed.
62. As regards the privatives of an apartment building, however, there are two exceptions to the principle of written delivery, which take the form of presumptions. A first exception means that the occupancy or commissioning of a building constitutes a presumption that the individual co-owner has tacitly accepted the structures and that the provisional acceptance has therefore already taken place. A second exception in which the works are presumed to have been provisionally or definitively accepted is the case where the individual co-owner or property manager has failed to comply with a request for provisional acceptance.
Please note: these exceptions only apply in the context of the delivery of the privatives of an apartment building. After all, with regard to the common parts, the Breyne Act always requires a written and contradictory deed so that the delivery has been validly concluded. The limited use of the common parts, which may be necessary in certain circumstances with a view to the sale of the privatives, therefore does not constitute provisional acceptance or acceptance of the construction works. Only in the event that the circumstances cannot be explained in any other way and where the client-purchaser is willing to accept the construction works, the commissioning of the common parts can be regarded as provisional acceptance.
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