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The Law Breyne

Part 7


The Breyne law provides for mandatory acceptance in two phases: provisional and final acceptance (also referred to as final acceptance) with an interval of at least one year.

In apartment buildings, the final delivery of the private parts may not take place before that of the common parts, in order to ensure normal habitability.

Sanction: any conflicting clause is considered unwritten.

In principle, both provisional and final acceptance can only be proven by a written deed drawn up in contradiction. However, the rule of express and written delivery has two important exceptions:

• the occupation or taking into use of the building (or of the renovated or extended parts thereof) is, subject to evidence to the contrary, as a presumption that the buyer or client tacitly accepts the provisional acceptance;

• the buyer or client is presumed to have accepted the works provisionally or definitively, as the case may be,if he has failed to comply with a written request from the contractor or the seller to proceed with the delivery on a specific date and, moreover, has failed to act on the date stated therein, to appear before the delivery.

This presumption does not apply to the completion of the common parts of a building.

Provisional acceptance of construction or renovation works

With the delivery of the works, the client declares that he accepts the construction or renovation without reservations.

The handover is an important milestone: it marks the end of the construction site and proves that the contractor has fulfilled his obligations.

The delivery takes place in two phases: a provisional delivery and a final delivery. If the Breyne law applies, this two-time delivery is mandatory.

What is provisional delivery?

The provisional acceptance is primarily the fact that the works have been completed and that you have moved into the home. This normally allows the company to claim the balance of the price and starts the period during which you can carry out a thorough inspection of the works.

What should you pay attention to during the provisional delivery?

Read the terms in your contract

Most contracts provide that the client “approves” the works upon provisional delivery. In other words, you believe the work was done correctly and you release the company from its responsibility for all visible defects.

Report the defects in an official report

If you notice visible defects, defects or shortcomings, report them in an official report of provisional acceptance. This must be signed by you and by the company. If the defects are minor, you can accept delivery with reservations and the company must remedy them. In the case of major defects, the provisional acceptance must be postponed as long as the problem persists.

Check whether the Breyne law was followed

Has the company failed to comply with certain provisions of the Breyne Act? If you want to have the contract declared null and void, you must do so before the provisional acceptance (before the execution of the authentic deed in the case of a sale).

Ten-year liability and provisional acceptance

For a period of ten years, the company is liable for defects that endanger the stability of the building or one of its essential parts. That period is called the ten-year liability.

If the client “approves” the works, the provisional acceptance is the start of the ten-year liability. This is provided for in most contracts.

Does a defect arise after approval of the works that is not covered by the ten-year liability (e.g. defective sound insulation)? In some cases you can then invoke the company's liability for "minor" hidden defects.

What does the Breyne law say about provisional acceptance?

If the Breyne law is applied, certain rules for provisional acceptance apply, including:

  • A written document signed by all parties serves as proof of provisional acceptance. If you refuse to accept delivery, you must motivate this in a registered letter to the seller or contractor.

Please note: if you occupy or use the premises, it is assumed that you tacitly accept the provisional acceptance (unless proven otherwise). This can also happen if you do not respond to a written request from the company to carry out the delivery on a certain date.

  • The transfer of risks (theft, fire, etc.) cannot take place before the provisional acceptance of the works or, in the case of an apartment, before the provisional acceptance of the private parts.

  • At least one year must elapse between provisional acceptance and final acceptance.

  • Has the company failed to comply with certain provisions of the Breyne Act? If you want to have the contract declared null and void, you must do so before the provisional acceptance (before the execution of the authentic deed in the case of a sale).


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