LAW BREYNE - JULY 9, 1971. - Housing Regulations Act

 

Part 1- The Agreement

The Housing Construction Act of 9 July 1971 regulating housing construction and the sale of homes to be built or under construction, better known as the “Breyne Act”, protects prospective builders or prospective buyers.

Intended Agreements

The law applies once the following three conditions are met together:

• It must be an agreement in which the contractor, promoter or seller commits to a
“to build”, “to have built” or “to provide” building;

The scope of the law was deliberately broadly defined in order to cover all possible situations related to the construction of a dwelling (house or apartment) or the sale of a dwelling to be built or under construction:
 

• for example, the commitment to “build” or “have it built” can take the form of a sale to plan or

      of a “turnkey” contract, but also that of an ordinary general
      residential building contract.
 

• the obligation to “provide” a building means all types of agreements whereby the construction professional, without engaging in the processing of the materials or concluding agreements for the physical realization, undertakes to carry out a series of operations necessary to complete construction. However, this requires that the intermediary, as organizer and consultant, is actually in charge of the project. It is therefore useless, in an attempt to escape the law, to call such agreements "coordination contract" or give them other names when the whole relates to such a commitment. 3239-9149-20813d6c673b_​

On the contrary, they do not fall under the law

   • the ordinary sale of a finished house or apartment.
   • selling an unfinished house without the seller committing to finish it.
   • the construction of a house through separate lots that the client entrusts to several
     construction professions...iIn this regard, it should be emphasized that the contractor, promoter or seller
     cannot evade the application of the law due to the operation under false pretences
     artificially split.


And what about the renovations?

The scope of the law is also extended to agreements for the sale of an existing home where the seller undertakes to carry out major renovation or extension works. This requires that:

   • the total price of these works represents more than 80% of the purchase price of the house and is higher than
     €18,600.

   • and the buyer is obliged to make one or more deposits before completion of the works.


EXCLUDED AGREEMENTS

   • The law does not apply to agreements entered into with:

   - regional housing and land companies and their recognized companies;
   - municipalities and intermunicipal associations.

   • The law also does not apply to the purchaser or client whose regular activity consists in
erect or have erected houses or apartments in order to alienate them for consideration.

     Any agreement entered into by these persons shall be deemed to have been made under
his regular activity, even if it concerns the construction of a dwelling for his own use.

     A non-professional buyer or client, who, for example, has an apartment building built with
on the other hand, the intention to rent or sell the apartments does enjoy the protection of the
     law.

THE CONTRACT: MANDATORY NOTIFICATIONS AND ANNEXES

The Breyne law aims to provide complete and correct information to the future owner. In order to allow the proposed acquirer to enter into commitments in full knowledge of the facts, the law lists a number of provisions that must be included in the agreement or in the promise for such agreement.

 

Thus, the contract, or the promise of the contract, must obligatorily contain the following provisions:

 

1. deidentity of the ownerof the land and of the existing structures.

 

2. either the date of issue and the terms and conditions of thebuilding permit, or that the agreement is entered intounder the suspensive condition of the granting of a building permit.

 

In the latter case, the applicant for the permit must undertake in the agreement to provide his co-contractor, within one month of receipt of the notification of the building permit, with a certified copy of this permit and of the conditions thereof.

 

3. the statement whether or not the buyer or client makes the agreement dependent on thecondition precedent of obtaining financing.

 

In the affirmative case, the minimum amount and the terms of the financing1 desired by the customer must also be stated.

 

This condition precedent must necessarily be fulfilled within a period of three months from the signing of the agreement, otherwise the agreement will not be able to take effect.

In this context, it should be pointed out that the prospective purchaser or client who enters into an agreement under the suspensive condition of obtaining financing undertakes to make the necessary efforts to obtain this financing. If he has prevented the realization of the condition through negligence, the co-contracting party will be able to request the dissolution of the agreement with compensation.

4. aaccurate descriptionof the private and common parts that are the subject of the agreement;

 

5. an attachment with theprecise plans and detailed specificationsof the works.

 

These documents must be signed by an architect and must expressly state how and with what materials the works will be carried out and, if applicable, under what conditions these specifications can be deviated from.

 

In the case of an apartment, a copy of the original deed drawn up in authentic form and of the rules of co-ownership must also be enclosed. The lack of these appendices to the authentic deed can be covered by a declaration by the notary, included in the deed, that these documents are in the possession of the parties.

 

6.The total priceof the house or apartment (if applicable, the total price of the renovation or extension works), thepayment methodand (if applicable) the possibility of aprice review.

 

The price must include all works necessary for normal habitability. 

 

Compensation for delay

8. the date of commencement of the works, the execution or delivery period and the compensation for delay in the execution or delivery.

 

Compensation for delaymust at least correspond to a normal rental price of the finished good.


9. a provision on the manner in which delivery will take place.

 

10. the explicit mention, in a separate paragraph and in different and bold characters, of the possibility for the buyer or clientfor the nullity of the agreement or of a provision that is contrary to the lawinvoke in the event of non-compliance with the provisions of Articles 7 (mandatory entries) and 12 (financial guarantee) of the law. In addition, the text of these two articles must be incorporated in full into the agreement.

 

11. the acknowledgment by the parties that they have had knowledge of the above information and documents for the past 15 days.

Sanction:the absence of the above-mentioned mandatory information or appendices is sanctioned by the nullity of the agreement or of the conflicting clause. The nullity must be invoked by the buyer or client before the authentic deed is executed or, in the case of a building contract, before provisional acceptance.

 

In this context, reference should be made to the notary's audit assignment for sales contracts. After all, if an authentic instrument is executed, it must state that the provisions of Articles 7 and 12 have been complied with. If the civil-law notary determines that the agreement does not comply with the provisions of the relevant articles, he must refuse to execute the deed.