2.4 What are the legal consequences?

2.4.1 Under Belgian law

174. Now that we have a clear picture of what exactly delivery is and who the parties involved are, we move on to the discussion of the last part of this chapter, namely the legal consequences of delivery. Feedback is provided to the various parties involved.

175. Roughly speaking, two important consequences can be distinguished: on the one hand, the transfer of risk and, on the other hand, the entry into force of the liability regime. This mainly includes liability for minor visible defects, slight hidden defects and serious defects, which fall under Art. 1792 Civil Code, important. In what follows, these consequences will be discussed in detail, focusing on the contractor, the architect (infra 2.4.1.3) and the building promoter (infra 2.4.1.4). After discussing the legal consequences under Belgian law, a comparison with French and Dutch law follows.

2.4.1.1 Transfer of Risk

176. During the discussion of the various actors in the construction process, it has already become apparent that the contractor has a number of obligations: an obligation to correctly and timely implement the building contract, a warning obligation and a delivery obligation (see above no. 85). In addition to these three obligations, articles 1788 and 1789 of the Civil Code contain an additional element. The risk of the total or partial destruction of the construction works rests with the contractor until the moment of delivery. In concrete terms, this means that the transfer of risk only takes place upon delivery.

177. In the context of apartment co-ownership, the Breyne Act and its Implementing Decree also apply (supra no. 22 et seq.). Art. 5, paragraph 2 of the Breyne Act stipulates that the risk of destruction of the structures can only be transferred to the buyer or owner of a private property after the provisional delivery of the private property has taken place.

2.4.1.2 Guarantee period under the Breyne Act

178. Due to the application of the Breyne Act and its Implementing Decree to apartment co-ownership, the delivery will take place in two phases (supra no. 44 et seq.). One of the consequences of the delivery in accordance with Art. 9 of the Breyne Act stipulates that a one-year warranty or maintenance period must expire between provisional and final delivery. The ratio legis of this period is to check whether the construction works can withstand one winter. This maintenance period is also linked to an obligation for the contractor. The contractor must in fact ensure that the remarks or reservations formulated in the provisional acceptance report are checked, repaired or completed during this period (supra no. 50).

2.4.1.3 Liability of contractor and architect

a) Liability for delivery

179. The contractor and the architect each have a number of duties and responsibilities with regard to the correct and timely execution of the construction works.  They can each make distinct mistakes. When the architect commits a mistake, it is referred to as a construction or design flaw. On the other hand, when the contractor commits an error in the execution of the works, it is referred to as an execution error. 374 Both parties can be held liable for such errors by the client-builder. This concerns a liability before delivery has taken place.

180. THE CONTRACTOR – The contractor is obliged, among other things, to carry out the construction works correctly and on time (supra no. 85). These obligations are contractual in nature as they arise from the building contract concluded with the client. Non-compliant, defective or late performance of the works is considered a performance error and will therefore lead to contractual liability.

181. In order for the client to be able to bring a liability claim against the contractor for failure to fulfill his contractual obligations, it is crucial to consider how the contractor's obligations should be classified. If the obligation is qualified as an obligation of result, it is sufficient that the client can demonstrate that the intended result has not been achieved. If, on the other hand, the obligation is assigned the qualification of an obligation of means, the client must also demonstrate that the contractor has not made the necessary efforts to achieve the intended result, which is obviously much more difficult to provide proof.

In general, the obligations of the contractor can be regarded as obligations of result. However, the parties may determine the qualification of the obligations to be delivered by agreement, although this will not be binding on the court. The judge can adjust the qualification if necessary, but will have to take into account the intention of the parties, the risks associated with the contract, the degree to which the parties are specialized (supra no. 76), etc.

182. THE ARCHITECT – The tasks of the architect are, on the one hand, the design of the structures and the preparation of the building plans and, on the other hand, the fulfillment of an obligation of inspection and assistance (supra no. 93 et seq.). If the architect makes mistakes when designing the structures, provides incorrect building advice or incorrectly assesses the suitability of the land, this constitutes a construction or design error for which the architect can be held contractually liable. However, it is not the building contract that forms the basis, but the architect's contract.

183. The classification of the architect's obligations also plays an important role. The audit obligation of the architect is regarded as a best efforts obligation, which means that the burden of proof on the client is higher than that on the contractor. 

184. After the construction works have been completed, the delivery will take place. This legal act forms an important pivotal moment in the assessment of the liability of the contractor, the architect and the building promoter (infra 2.4.1.4). A distinction can be made here between three different liability regimes: liability for minor visible defects, liability for minor hidden defects and liability for serious stability-threatening defects that fall under art. 1792 Civil Code. In what follows, these three liabilities are each dealt with separately.

b) Liability for minor visible defects

185. The liability that exists on the part of the contractor and the architect for minor visible defects is a liability under common law for defects that were visible to the client-builder at the time of delivery and that do not affect the strength and/or stability of the building . However, it is required that the client, who is not an expert in construction matters, can discover these defects without having to “over-analyze” the construction works.

186. It is also worth mentioning here that the architect's liability is not limited exclusively to construction or design errors. If the architect fails to point out certain minor visible defects to the client, which normally had to be included in the delivery report, the architect can also be held liable for this.

187. The contractor and the architect are generally released from this liability upon acceptance of the works. In the definition of terms, it has already been mentioned that the terms 'acceptance' and 'delivery' are frequently used interchangeably (supra no. 42). With apartment co-ownership – since in this context there is a double delivery – it is assumed in principle that liability for minor visible defects lapses from the final delivery, since this delivery is often equated with the acceptance of the construction works. However, it is also possible that the parties contractually agree to equate acceptance with provisional acceptance. In that case, the slight visible defects are covered from the provisional acceptance.

188. However, in order to be released from their liability, it is required that the client has not formulated any comments or reservations in the acceptance report. If, on the other hand, this is the case, the contractor and/or architect are obliged to repair these defects (ie the warranty obligation).

If the contractor does not rectify the defects for which a remark or reservation has been made, the client can institute legal proceedings to that effect. It is generally accepted that this liability claim must be brought within a reasonable period of time after the defects in the delivery report have been identified. In addition, this claim is subject to the common law limitation period of ten years, counting from the delivery/acceptance of the works.

189. With regard to the filing of a claim against the contractor or architect in the context of apartment co-ownership, it should be noted that this can be done by the individual co-owners themselves as well as by the VME. The individual co-owners can take legal action with regard to their private assets, as well as with regard to the common parts. When an individual co-owner institutes a claim, however, it is required that he informs the syndic thereof.  In addition, the VME will only be responsible for filing the claims regarding the common parts. The VME has legal personality and is authorized to act in court on behalf of the joint co-owners, whereby the syndic is the legally authorized body to represent the VME (supra no. 111 et seq.).  Attention: the VME is not exclusively authorized in this context, but together with the individual co-owners.

c) Liability for minor hidden defects

190. While the delivery or acceptance of the works ensures that liability for minor apparent defects is covered, this does not in any way mean the end of liability for minor hidden defects, which is a more complex doctrine.

191. There is a hidden defect when the structure lacks certain expected properties that could not be noticed by the client at the time of delivery and which make the structure unsuitable or significantly less suitable for the use for which it was intended.

192. In order for the contractor's and/or architect's liability for minor hidden defects to be successfully invoked, five cumulative conditions must be met:

     (1) There is a building or architectural contract

     (2) There is a defect, namely “any imperfection, any defect, any or
          rond het bouwwerk en zijn function, including the ground, the components or the raw materials”

     (3) The defect is hidden which implies that a normal, prudent and careful client in
          dezelfde omstandigheden dit gebrek evenmin would have discovered.

     (4) The defect must show a certain degree of severity. In het algemeen gaat men ervan uit dat een gebrek        _cc781905-5cde-3194 -bb3b-136bad5cf58d_   is serious enough if the client would have refused delivery if he had
          gebrek op de hoogte was or if he would have paid a significantly lower price. It
          gebrek mag evenwel niet zodanig serious that it can be qualified as a heavy
          stabiliteitsbedreigend gebrek in de zin of Art. 1792 Civil Code.

     (5) The client must provide proof of an execution error by the contractor or of a construction defect.
          of ontwerpfout van de architect .

However, a comment should be made on the third condition. The hidden nature of the defects depends, among other things, on the capacity of the client. As already discussed in the discussion of the parties, an inspection obligation rests on the client. He will have to thoroughly check the structures at the time of delivery and check whether any defects are visible (supra no. 75). As a rule, it is assumed that if the defects are not visible to a non-professional client, they must be regarded as hidden defects. If, on the other hand, the client can be regarded as a professional client, one will be stricter in assessing the hidden nature of the defects. The court of fact assesses this in an unassailable manner.

193. However, if the client discovers a hidden defect, he will not be able to take legal action immediately. The contractor and the architect are under a warranty obligation, which implies that the client can first hold them accountable for repair and compensation.405 It is only when the contractor and/or architect have informed the client that they have completed the repairs that they will not or if they dispute their liability, that the client is entitled to bring legal action.

Please note: the mere determination of the fact that the construction works are riddled with a hidden defect does not imply as such that the contractor and/or architect are obliged to pay compensation. The client will have to provide proof of a causal connection between the defect, the error and the damage suffered.

194. The period for instituting a liability claim for minor hidden defects commences at the time of delivery or acceptance of the construction works. In the context of apartment co-ownership, there is a double delivery (see above no. 44 et seq.). Since the provisional acceptance only aims to establish the completion of the construction works, it will be the final acceptance that is equated with the acceptance of the construction works. The period for filing a claim for hidden defects therefore starts to run from the final acceptance.

195. In the context of liability for minor hidden defects, an important distinction must also be made between the guarantee period and the procedural period.

The guarantee period is the period within which a contractor and/or architect can be held liable for a hidden defect without it being established whether that defect is actually present. The starting point of the guarantee period is the day after acceptance of the works, which will often coincide with the moment of final delivery. This period is equal to the common law limitation period from art. 2262bis, §1 Civil Code and is ten years. Since this is a limitation period, this period can be interrupted and suspended. 

As already mentioned above (supra no. 193), there is an obligation to repair on the part of the contractor and the architect. However, if the contractor or the architect have indicated that they will investigate and/or repair the defects, the claim cannot become time-barred until the moment the contractor and/or architect have informed the client that they are discontinuing the repair attempt._cc781905- 5cde-3194-bb3b-136bad5cf58d_

The procedural period, on the other hand, is the period within which the client must proceed to bring the liability claim in court. This period must in any case be situated within the guarantee period. In concrete terms, the procedural term is a reasonable term after the client has discovered or should reasonably have discovered the hidden defect. It is the judge who will determine in an unassailable manner whether the claim in question has been brought in time, taking into account the seriousness of the defects and the circumstances of the case. For example, the court will reject a claim as late if the client has de facto accepted the situation due to its prolonged inaction.

196. The claim for minor hidden defects can be brought by both the individual co-owners and by the syndic in his capacity as legal representative of the VME (supra no. 189).

197. Liability for minor hidden defects is a common law, contractual liability. It is neither of public order nor of mandatory law, which implies that it is possible to insert certain stipulations in the building contract and/or architect's agreement, such as exoneration clauses, for example. An exemption clause is a contractual clause stipulating that a party can be fully or partially released from its liability in the event of a contractual failure. Such exoneration clauses are in principle valid by application of the principle of the autonomy of the will, except in the following three situations:

- In the event of a conflict with a provision of public order or mandatory law;

- In case they release the contractor or architect from liability for willful misconduct, fraud or fraud;

- In case they completely erode the agreement.

198. In this context, it is common practice for a clause to be inserted into the contract limiting the period for bringing a liability claim for minor hidden defects. Such time limits are valid in principle, although 'an exceptionally short period' for filing a claim could, however, be declared null and void on grounds of undermining the contract. The question that arises here is what is regarded as 'an exceptionally short term'. It will be up to the court to determine this in concrete terms. However, it is assumed that the client must always have the opportunity to test the structure. In the context of apartment buildings, the individual co-owners or the VME will of course need several years to test the structures for defects. The assessment of this term also depends on the nature and size of the structures. Since this concerns a factual assessment by the court, this is in many cases a point of discussion, which does not benefit legal certainty in the least.

199. Exoneration clauses are also prohibited if they conflict with provisions of mandatory law, such as, for example, the rules from Book VI WER Book VI WER applies to agreements concluded between companies and consumers where the subject of the agreement is a product. There is therefore no doubt whatsoever that the provisions of the WER apply to building contracts.

200. When exoneration clauses result in individual co-owners (ie consumers) having only an exceptionally short period of time to bring a liability claim for minor hidden defects, there is a risk that such a clause will be regarded as an unlawful clause within the meaning of of Book VI WER

On the one hand, Book VI WER contains a black list of terms that are always unlawful. When a clause appears on this list, the court has no discretion whatsoever. An exemption clause that provides for an exceptionally short period of time can be regarded as an unlawful clause within the meaning of art. VI.83, 15° WER (ie determining an unreasonably short period to report defects in the delivered product) and within the meaning of art. VI.83, 30° WER (ie improperly excluding or limiting the legal rights of the consumer in case of default or defective performance on the part of the company) WER

On the other hand, Book VI WER contains a general testing standard. In that case, there is an unlawful term when a term, alone or in conjunction with other terms, creates an apparent imbalance between the rights and obligations of the parties to the detriment of the consumer. It is necessarily an apparent imbalance, which implies that the imbalance must be clear or obvious. If the individual co-owner has only an exceptionally short period of time to file a liability claim, then in my opinion there is an apparent imbalance. However, it will be up to the court of fact to assess in concrete terms whether the exemption clause violates this general standard of assessment.

201. The above provisions only apply in the relationship between the consumer and the company, which in concrete terms is the relationship between the individual co-owners and the building promoter, contractor or architect. If, on the other hand, the syndic as a representative body of the VME wishes to institute a liability claim due to minor hidden defects in the common parts, the protection mechanisms of Book VI WER cannot be invoked. The VME is a legal entity and therefore does not qualify as a consumer in the meaning of art. I.1, 2° WER

During the discussion of the various parties involved in the delivery, it was already discussed that a delivery must also take place between the (building promoter) main contractor and the various subcontractors (supra nr. 82 and 90). If the agreement between these parties contains an exemption clause that provides for an exceptional period for filing a liability claim, the protection mechanisms of Book VI WER cannot be invoked either. This also concerns a legal relationship between two companies.

202. However, an important nuance should be made here. The Law of 4 April 2019 introduces new rules in Book VI WER that regulate the relationships between companies. Although this B2B regulation will only come into effect on December 1, 2020, its importance in this context cannot be denied. The new B2B regulation aims to bring the relations between the different economic players to a more balanced level by introducing an unlawful contract doctrine in contracts concluded between two companies. This is done by analogy with the regulation that applies between companies and consumers. The type or nature of the contract concluded between the companies is irrelevant here, which implies that the B2B scheme applies to building contracts.

If the agreement thus contains an exoneration clause that provides for an exceptionally short term within which the VME or the main contractor can initiate a liability claim for minor hidden defects, the parties must be aware from 1 December 2020 that such exoneration clauses may conflict with with the new B2B scheme.

203. Future art. VI.91/4 WER from the B2B regulation introduces a black list of clauses that are prohibited at all times and future art. VI.91/5 WER introduces a gray list of terms that are presumed to be unlawful, unless the contrary can be proven. When an exoneration clause provides for an exceptionally short period, it can be judged in my opinion that there is an unlawful clause within the meaning of future art. VI.91/5, 4° WER where the legal rights of a party are improperly excluded or limited in the event of a default or defective performance of the obligations by the other party. Since the court has a wide discretion in this respect, the question is how this will be dealt with in the future. This case concerns a violation of the gray list of unlawful terms, which implies that there is a rebuttable presumption. Although the law does not clarify what the evidence to the contrary should look like, it seems to be assumed that it will have to be demonstrated that the clause in question does not create a manifest imbalance between the rights and obligations of the companies.

204. Future art. VI.91/3, §1 WER also introduces a general testing standard. This open standard is a repetition of the wording from Art. I.8, 22° WER and should be completed and approached in the same way as the general testing standard in consumer matters (supra no. 200). It will therefore be a matter of fact in which the court will have to verify in concrete terms whether or not an exoneration clause violates this general standard of assessment.

d) Liability for serious defects (art. 1792 Civil Code)

205. The third liability regime is the ten-year liability for the contractor and the architect under Art. 1792 Civil Code. This article states that “if a building erected at a fixed price is wholly or partly destroyed by a defect in the construction, even by the unsuitability of the land, the architect and the contractor shall be liable for it for ten years.” This article should be read together with the statute of limitations from art. 2270 BW, which the principle from art. 1792 BW repeats. In the context of apartment co-ownership, the Breyne Act and its Implementing Decree will apply (supra no. 22 et seq.). Art. 6, paragraph 1 of the Breyne Act expressly stipulates that articles 1792 and 2270 of the Civil Code are applicable.

206. The ratio legis of this liability is twofold: on the one hand, it serves to protect the client-builder, since these defects often only manifest themselves after some time, and on the other hand, it serves to protect public safety.

207. The ten-year liability of the contractor and the architect can only be applied if one of the following conditions is met cumulatively:

(1) There must be a building contract.

(2) It must be a building, an important part of a building or a large piece of real estate.

(3) With regard to the nature of the defect, Art. 1792 Civil Code about the “complete or partial destruction of the works due to a defect in the construction”. However, it is not required that the building actually collapses or that there is an acute danger of collapse. It is sufficient that there is an unsuitability of the land or a defect in the building that endangers the solidity or stability of the building. More generally, the destruction of the structures occurs when the building can no longer serve the purpose for which it is intended. The judge assesses this in an unassailable manner. However, it is irrelevant whether it concerns a visible or a hidden defect.

(4) The client must provide proof that the defect is due to an error of execution on the part of the contractor or to a construction or design error on the part of the architect. Their mistake is not suspected.

208. In addition to these conditions, mention can be made of two cases which, through a strict interpretation, would not meet these conditions, but which, on the other hand, are nevertheless assumed to fall under Art. 1792 Civil Code. This primarily concerns major repair works carried out by the contractor during this ten-year period. When the repair works in turn can be regarded as 'major immovable works', a new ten-year term will commence.  As a second exception, it is accepted that claims of the client with regard to damage incurred subsequently are virtually included in the original claim. This is the case when the damage subsequently incurred is the result of the same execution or construction errors that formed the basis of the initial claim.

209. As with liability for minor hidden defects (supra no. 194), the period for bringing this liability claim commences at the time of acceptance of the works. In the context of apartment co-ownership, a double delivery takes place, as a result of which the moment of acceptance of the works is generally equated with the final delivery. However, it is also possible that the parties contractually agree that the provisional acceptance is regarded as acceptance.

210. In the case of liability for minor hidden defects, a distinction was made between the guarantee period and the procedural period (supra no. 195). The ten-year liability constitutes a deviation from the common-law liability rules, since this period is both a guarantee period and a procedural period. This period is also an expiry period that cannot be suspended or interrupted. The defect must therefore manifest itself within a period of ten years after acceptance and the client must within the same period proceed to bring a claim against the contractor and/or architect. Contrary to what is the case with the claim for minor hidden defects (supra no. 195), it is within the framework of art. 1792 of the Dutch Civil Code therefore does not require that the client institutes the liability claim within a reasonable period of time after the discovery of the defects.

211. When the ten-year period has expired, the contractor and the architect no longer bear any liability, since in that case it is no longer possible to determine whether the damage caused is the result of a specific defect or of old age .

212. The ten-year liability is a contractual liability arising from the building contract and the architect's contract respectively. Please note: the application of this liability regime does not have to be expressly stipulated by the parties for it to be applicable. 

Given the contractual nature of this liability, a claim under art. 1792 j° 2270 Civil Code can only be instituted by the client in its capacity as a direct contracting party of the contractor and/or architect. Third parties can therefore in no way initiate such a claim. In the context of the apartment co-ownership, the client will be a different person than the ultimate owners of the privatives. The client's right of action based on Art. 1792 j° 2270 BW is transferred to the buyer as an accesorium of the sold property, so that the ultimate buyer can subsequently institute liability claims against the contractor and/or architect. If you want to file a claim on the basis of art. 1792 Civil Code due to defects in the common parts of the apartment building, it should be noted that this is not only possible by the individual co-owners, but also by the property manager as legal representative of the VME (supra no. 189).

It is important here that the liability claim must be brought against both the contractor and the architect, since both parties have committed themselves to the client by means of a separate agreement. 

213. It has already become clear from the explanations of the parties involved that the contractor can call on one or more subcontractors during the execution of the construction work. If this is the case, the main contractor will, however, remain liable to the client (supra no. 91). However, a separate term of ten years applies to the various subcontractors. However, the client cannot initiate a direct claim against these subcontractors as the client only has a contractual relationship with the main contractor.

214. Contrary to the common-law liability regimes, the ten-year liability does affect public order, since it is not only intended to protect the client-builder, but is also supposed to serve public safety (supra no. 206). This public order nature implies that the parties cannot contractually exclude or limit this liability. Deviating stipulations, such as exoneration clauses, will therefore be null and void.

2.4.1.4 Liability of the property developer

215. When assessing the liability of the building promoter, a distinction must be made according to the qualification of the contract. Any agreement that falls within the scope of the Breyne Act can be qualified either as a purchase agreement or as a building contract. This distinction is extremely important with regard to the time limit for bringing a liability claim. However, the judge is not bound by the qualification that the parties give to their agreement and if the judge wishes to change the qualification, he will first check the intention of the parties.  This distinction is further explained below.

a) Purchase Agreement

216. LIGHT VISIBLE DEFECTS – In accordance with art. 1604 of the Dutch Civil Code, the seller is obliged to deliver the sold item in accordance with the provisions of the purchase agreement. If the thing sold is a building with minor visible defects, such a conforming delivery does not apply. If the client encounters minor visible defects during the tour following the provisional delivery, he must include these in the report of delivery in the form of a remark or reservation. If the client fails to formulate comments or reservations, he will no longer be able to hold the building promoter-seller liable afterwards. In concrete terms, this means that the building promoter-seller is released from his liability for minor visible defects after delivery or acceptance.

217. If remarks or reservations were nevertheless formulated with regard to minor visible defects, the client will in the first instance have to address the building promoter-seller for repair and compensation (supra no. 188).Only if the building promoter-seller does not complete his warranty obligation, the client can bring a legal claim. It is generally accepted that such a claim must be made within a reasonable time after the discovery of the defects in the acceptance report. In addition, the common law limitation period of ten years after delivery applies in this context.

218. A liability claim for minor visible defects in an apartment building against the building promoter-seller can be brought separately by the individual co-owners as well as by the syndic in his capacity as legal representative of the VME (supra no. 189).

219. These common-law liability rules are supplementary law, which implies that the parties can provide for all kinds of deviating clauses by agreement. 

220. SLIGHT HIDDEN DEFECTS – In accordance with art. 1641 Civil Code, the seller is obliged to indemnify the buyer against hidden defects that make the thing sold unsuitable for the use for which it was intended or that would have caused the buyer to pay a considerably lower price if he had made the defects on the height had been. This obligation to indemnify is a warranty obligation and commences upon provisional delivery.

221. The claim for indemnification of hidden defects must be brought within a short period of time after the discovery of the defect. This short period is regarded as the procedural period and in addition the ten-year guarantee period applies (ie the limitation period in accordance with art. 2262bis, §1 of the Civil Code). Like the rules on minor visible defects (supra no. 219), these common-law liability rules are of supplementary law, which implies that different contractual clauses are possible.

222. The claim can be brought by the individual co-owners as well as by the property manager as legal representative of the VME (supra no. 189).

223. TEN-YEAR LIABILITY – The liability claim against the contractor and the architect under art. 1792 DCC is contractual in nature and, as already mentioned, is transferred to the buyer as an accesorium of the sold good (supra no. 212). This implies that the building promoter-seller cannot be held liable on the basis of art. 1792 Civil Code, but that the individual co-owners or the VME must approach the contractor and/or the architect directly (supra no. 212). The building promoter, on the other hand, can be held liable on the basis of art. 1792 Civil Code when the agreement is qualified as a building contract (infra no. 224 et seq.).

However, the Breyne Act contains a nuance in this context: if at least one of the privatives is sold before the building is fully completed (ie purchase off plan), the liability for the common parts of the property developer-seller falls after the full completion of the building. the apartments still under the application of art. 1792 Civil Code.

b) Building contract

224. LIGHT VISIBLE DEFECTS – When the agreement with the building promoter qualifies as a building contract, the building promoter assumes the role of main contractor (supra no. 82). The contractual obligation that exists on the part of the building promoter-contractor is therefore not a delivery obligation in accordance with art. 1604 Civil Code (supra no. 216), but consists in carrying out the works in accordance with the contract of employment.

225. In this case, the rules on minor visible defects apply as described above in the context of the contractor's liability (supra no. 185 et seq.). In concrete terms, the liability of the building promoter-contractor is thus covered from the moment of delivery or acceptance of the works. If the works still show slight visible defects, the client must address the building promoter-contractor within a reasonable period of time, with due observance of the common law limitation period of ten years.

226. The claim for minor visible defects can be brought by the individual co-owners, as well as by the property manager as legal representative of the VME (supra no. 189).

227. LIGHT HIDDEN DEFECTS – Even in the case of light hidden defects, the rules described above will apply to the building promoter contractor (supra no. 190 et seq.). In concrete terms, the liability claim for minor hidden defects will have to be brought against the building promoter-contractor within a reasonable period of time after the defect was discovered. However, this is an important difference with the claim for minor hidden defects against the building promoter-seller, which must be brought after a short period of time. This reasonable period is regarded as the procedural period (supra no. 195) and in addition the general limitation period of ten years counting from the acceptance of the works (ie the guarantee period) also applies. However, how these terms will be implemented in concrete terms remains an unassailable judgment of the court of fact.

228. This claim can also be brought by the separate individual co-owners, as well as by the property manager as legal representative of the VME (supra no. 196).

229. TEN-YEAR LIABILITY – Although the literal wording of art. 1792 Civil Code only deal with the contractor and the architect, this provision should still be interpreted more broadly and the building promoter can also be held liable on this basis. In concrete terms, therefore, two deliveries will take place: on the one hand, there is the delivery between the client and the building promoter-contractor and, on the other hand, there is the delivery between the building promoter-contractor, who may be assigned the role of main contractor, and the subcontractors (supra no. 82). ).

230. It was already mentioned above that the starting point of the ten-year liability period is the delivery or acceptance of the works (supra no. 209). It is important to note that the ten-year term in this context already starts to run from the moment of acceptance of the works of the subcontractors by the building promoter main contractor and therefore not at the moment when the client delivers and accepts the construction works in their entirety. .

231. As is the case with the liability of the contractor and the architect under Art. 1792 Civil Code, it is also the case with regard to the building promoter-contractor that the guarantee period and the procedure period are equated. This implies that the defect must manifest itself during this ten-year period and that the client must also initiate a liability claim within the same period (supra no. 210).

232. The ten-year liability is a contractual liability, which implies that a liability claim can only be brought on this basis by a direct contracting party (supra no. 212). In concrete terms, the client can therefore only bring a claim against the building promoter-contractor and not against the various subcontractors. This is an important difference with the case in which the agreement with the building promoter is qualified as a purchase agreement. In that case, it is indeed possible for the client to file a claim against the 'subcontractors', since the right of claim is transferred as an accesorium with the purchased good (supra no. 223).

233. A claim under art. 1792 Civil Code can be instituted against the building promoter-contractor by the final buyers of the privatives, as well as by the property manager as legal representative of the VME (supra no. 202).