Payments and provisional deliveries

 

 

 

It happens that during provisional acceptance you have valid reasons to withhold the final payment. Suppose, for example, that there are still a whole series of minor defects that together represent an amount of approximately € 2,000 and the property is also delivered with a delay of four months: then you are entitled to the sum of € 2 when paying the balance. 000, plus the compensation due due to the delay.

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Once the report of provisional acceptance has been signed by all parties, the transfer of the house or apartment is a fact and you have the right to enter it, regardless of whether a payment is still outstanding due to valid reasons as described above. Make sure you always have a copy or take a photo of it.

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A final payment installment for all invoices has nothing to do with the delivery itself, if a contractor or project developer demands the final sum and asks for it to be deposited so that it is credited to his account 3 days before the provisional delivery takes place. This is not correct, you only receive the keys with a final payment, so a final payment of 5% can also be made immediately after or during a provisional acceptance. One has nothing to do with the other!

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Requested payment of a final invoice before provisional acceptance takes place!

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TIt is often demanded that the final invoice be paid in full before provisional acceptance... while all agreed work has not yet been fully carried out...

The law of July 9, 1971 is clear...and BW. Art.14 Anyone who directly or indirectly violates the provisions of Article 10 by demanding or accepting payments shall be punished with imprisonment of eight days to one month and a fine.
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At our insistence...most of them are now following suit construction developers and construction companies for which we have completed deliveries and those who did not comply with this... this provision is part of the Breyne Act Art.10 and BW.art.14...(payments).

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Payments in installments

 Art. 10  - The balance of the price of the works is only payable in parts from the day of the execution of the authentic deed;the partial paymentsshould not be higher are then the price of the work carried out! ThisArt.10 is very clear...and applies equally if there isa provisional acceptance is requested, and this for the completion of all work, and both parties agree to it to be delivered...even if the entire works are not yet completed...one is allowedtherefore geand demand full paymentand!

 

This Art.10 of the Breyne Act only applies to goods/materials not yet delivered and not installed/executed, this applies to private and communal parts! For comments on the work carried out for all materials/goods supplied, payments must be made!

 Art. 14. Anyone who directly or indirectly violates the provisions of Article 10 by demanding or accepting payments shall be punished with imprisonment from eight days to one month and a fine of 26 [EUR] to 200 [EUR] or one of these penalties. (NOTE: read euro instead of franc: W 26-06-2000, art. 2, En vigueur: 01-01-2002)

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Sanction:any clause that conflicts with the principles stated above is considered unwritten.

But what if the project developer or contractor refuses to give you the keys at that moment?

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Notice of default and, if necessary, penalty

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Send him a registered letter in which you explain that you are giving him notice of failure to provide you with the keys within 24 hours, and that otherwise you will go to the summary proceedings judge to demand the keys under penalty of a penalty.

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Replacing locks

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Another method is to have the locks replaced and thus gain access to the propertyhaft."Due to the persistence of some companies to demand full payment for the provisional acceptance, I unfortunately (with the approval of the buyers)and in the presence of a bailiff and locksmaker...this is necessaryn apply...afterwards they are advised to do sowent to their lawyer and he could only tell them that Mr. Noël Van Goethem was right!"  Why do they have to do the lesson first?be spelled out before they understand that this is unfair with what they demand (Art.10 of the Breyne Law)! "You can deduct this intervention from your final invoice to them!" 

 

Too often the buyers have their backs against the wall and the sellers are there too abuse of...the sellers do ask that you are correct and that the payments in installments are always paid correctly, and this within the due date...and the less you know or see on the site, the better some people have it...but they patch all rules of the Breyne Act and Civil Code. ignored...everyone has their rightsr also his duties...(be fair to the buyers) I will never face each other with my knives drawn...but will attempt to mediate to defend the rights of the buyersand.

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"It is indeed customary that the full sum is paid upon provisional acceptance"

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"After all, the contractor has carried out all the work at that time and is therefore entitled to a full payment. You can possibly withhold a portion if there are justified reasons (major delay, ...)but withholding a deposit as a guarantee is in principle not possible. I understand your concerns about the after-sales follow-up and, as you indicate, there is the bank guarantee or guarantee that is partly intended for this."

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"This guarantee is not so much intended to resolve and finance defects. This guarantee is more of a guarantee and if a problem arises, you as a customer can principle, claim that guarantee from the bank. If you do not feel completely comfortable with this, you can be assisted during the provisional delivery by an expert (your architect or a third person) so that you can be sure that the delivered home is of good quality." 

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Legally very important! In practice, provisional acceptance will almost always mean a definitive renunciation of visible defects. If the buyer signs a provisional acceptance, he can no longer cite a defect that was visible at the time of delivery, but he canorgan shortage or a stability problem.

 

If necessary, you must refuse delivery.Only sign if the apartment is normally habitable. This means that water and electricity must be connected, there is a front door in the apartment and, apart from a number of minor finishing touches, everything is functional. A scratch in a window is not sufficient to refuse delivery, but it is, for example, that the carpet in one room is missing or the electricity is not connected.

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First provisional delivery of apartment? For the provisional acceptance, the promoter may first deliver the apartment and then the common parts. Promoters who are not recognized contractors are quick to deliver the private properties as quickly as possible in order to reduce their financial guarantee, which they are obliged to provide until the building is completed. This is also allowed, if the accessibility of the apartment building can be completely safe (handrails and parapets in the stairwell in perfect order, emergency lighting working, elevators fully inspected and working, etc.).

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"In practice, the provisional acceptance of the private parts usually takes place before the provisional acceptance of the common parts. The question may be asked whether the provisional acceptance of the private parts can be refused on the grounds that the common parts have not yet been completed. The Dutch-speaking court of first instance of Brussels ruled in the affirmative on April 22, 2016. After all, according to the court, the provisional acceptance of the private parts requires that the common parts show a certain degree of finish so that the private parts can actually and usefully be put into use. However, the judge will always have to assess the situation in concrete terms."

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The situation and its seriousness must be assessed in concrete terms, which means that some caution is of course always required.

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The building promoter also benefits from the private parts being delivered as quickly as possible, since the provisional delivery determines the delivery period of the good. After all, provisional acceptance means the determination that the works have been completed (with the exception of minor works or repairs still to be carried out for which a reservation can be made), as a result of which the building promoter will not owe or incur any delay fines.

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Attention!  If not everything is accessible and safe, it is best for the buyer not to sign for the provisional delivery of the apartment.

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Good to know. Upon final delivery (which takes place at least one year later), the law does stipulate that the common parts must be completed first and then the private apartments.

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Finally! It must be stated that you must notify the seller or contractor of the refusal to proceed with delivery together with the reasons on which it is based by registered letter, even if a report of refusal has been issued. of revivalring was drawn up (art. 2 Breyne Act Implementation Decree).

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“Art.7.The agreements referred to in Article 1 as well as the promises for such agreements must:...f) state the start date of the works, the execution or delivery period and the damages due to delay in the execution or delivery; these compensations must at least correspond to a normal rental price of the finished goods to which the agreement relates...Art. 10. The balance of the price of the works is only payable in parts from the day of the execution of the authentic deed; the partial payments may not exceed the price of the works carried out...” (Breyne Act = 9 JULY 1971. _ Act regulating housing construction and the sale of housing to be built or under construction).

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The construction promoter cannot therefore delay delivery with impunity. You can therefore deduct the price of the work NOT carried out from your final partial payment.“

 

Art.2.§ 1...Both the preProvisional and final delivery of the works is only proven by a written and contradictory deed drawn up between the parties...§ 2. However, the occupancy or putting into use of the building or of the renovated or expanded parts thereof constitutes a presumption that the buyer or client tacitly accepts the provisional acceptance, unless there is proof to the contrary.” (21 OCTOBER 1971. - Royal Decree implementing the law of 9 July 1971 regulating housing construction and the sale of houses to be built or under construction).

tacit acceptance

 

Any possible tacit acceptance only applies to provisional acceptance (until proof to the contrary).
Final delivery is only possible via a written and contradictory deed (regardless of what the agreement states) or if a written request from the contractor has been ignored and if the user has not appeared on the date set therein within 15 days after being reminded via bailiff's writ. for delivery.

(see art. 2 of the implementation decree:

Art. 2
§ 1

The delivery of a work pursuant to an agreement referred to in Article 1 of the same law must meet the following minimum conditions.

Both the provisional and the final acceptance of the works are only proven by a written deed drawn up between the parties.

The refusal to proceed with delivery, together with the reasons on which it is based, will be notified to the seller or contractor by registered letter.

§ 2

1[However, the occupancy or putting into use of the building or the renovated or expanded parts thereof constitutes a presumption that the buyer or client tacitly accepts the provisional acceptance, unless there is proof to the contrary.]1

The buyer or client is presumed to have accepted the works provisionally or definitively, as the case may be, if he has failed to respond to the written request of the seller or contractor to have delivery on a specified date and if he has not responded within fifteen days after he was summoned to do so by the seller or contractor in a bailiff's writ, on the date set therein, he has not appeared for delivery.

 

This provision does not apply to the delivery of common parts of a building.)

Syndicate and co-owners

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You can request that the syndic convene a meeting with a minority of at least 1/5 owners.

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According to art. 577-8 16°, the syndic must provide you with the list of all personal data of the other co-owners upon your first request.

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