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The Law Breyne

Part 8

Chapter II: Legislative Texts


Law of 9 JULY 1971.- Act regulating housing construction and the sale of homes to be built or under construction.

Art. 1. This law applies to any agreement for the transfer of ownership of a house or apartment to be built or under construction, as well as to any agreement whereby an undertaking is entered into to build, have built or provide such immovable property, provided that the house or apartment is intended for housing or for professional purposes and housing and the buyer or the client is obliged according to the agreement to make one or more deposits before the completion of the building.

This law also applies to any agreement for the transfer of ownership whereby the undertaking is entered into to house, renovate or expand a house or apartment, intended for housing or for professional purposes, where the total price of the refurbishment or extension work exceeds the minimum amount, the calculation methods of which will be determined by the King and the purchaser or client is obliged, according to the agreement, to make one or more payments before the completion of these works.

Art. 3. The agreements referred to in Article 1 fall under the provisions of the Civil Code regarding the purchase or rental of work and services pursuant to specifications and contracts, subject to the deviations provided for in this Act.

Art. 4. Through the agreement, the seller's rights to the land and to the existing structures, with regard to the house or apartment to be built or under construction, immediately transfer to the buyer.

Art. 5. The transfer of ownership of structures to be built takes place as the building materials are placed and processed in the ground or in the building. However, in the case of both a sale and a building contract, the risk cannot pass, in accordance with the provisions of Articles 1788 and 1789 of the Civil Code, before the provisional acceptance of the works or, in the case of an apartment, before the provisional acceptance of the parts for private use.

Art. 6. Articles 1792 and 2270 of the Civil Code also apply to the seller. The seller's indemnity under the previous paragraph also applies to successive owners of the house or apartment. However, the legal action can only be brought against the original seller. When an apartment of a collective building is sold before completion, the liability of the seller for the common parts of the apartments sold after completion also falls under the application of this article.

Art. 7. The agreements referred to in Article 1 as well as the promises for such agreements shall:

a) indicate the identity of the owner of the land and of the existing structures; b) indicate the date of issue of the building permit and the conditions of that permit or the agreement on the condition precedent of obtaining a building permit; in the latter case, the applicant for the building permit must undertake to provide his co-contractor with a certified copy of this permit and its conditions, within one month of receipt of notification of the decision on the building application ;

(ba) indicate whether or not the buyer or principal makes the agreement conditional on obtaining financing for a minimum amount, subject to conditions to be determined; this condition precedent can never last longer than three months, counting from the date of conclusion of the agreement;

c) include a precise description of the private and common areas that are the subject of the contract;

d) include, as an annex, the precise plans and detailed estimates of the works covered by the contract. The manner in which and the materials with which these works will be carried out must be explicitly stated and, if applicable, whether and under what conditions this can be deviated from. These plans and specifications must be signed by an architect authorized to practice that profession in Belgium and, if it concerns an apartment, a copy of the basic deed drawn up in authentic form and of the regulations of co-ownership must be added; The absence of these attachments in the authentic deed can be covered by the notary's statement, in this deed, that these documents are in the possession of the parties;

e) indicate the total price of the house or apartment or, in the case in question, the total price of the renovation or extension and the method of payment; state that the price is subject to revision; This price includes all works necessary for normal habitability;

(ea) mention the existence of the regional public housing allowances and communicate the relevant basic conditions as an appendix to the agreement;

f) state the date of commencement of the works, the execution or delivery period and the compensation for delay in the execution or delivery; these payments must at least correspond to a normal rental price (of the finished good to which the agreement relates);

g) determine the manner in which delivery will take place;

(h) include the acknowledgment by the parties that they have had fifteen days' knowledge of the information and documents referred to in this Article. The King may determine the minimum conditions to be met by the provisions of this article. In any case, the agreement states in a separate paragraph, in different and bold characters, that the buyer or client has the right to invoke the nullity of the agreement or the nullity of a provision that is contrary to the law in the event of non-compliance with the provisions of or under Articles 7 and 12, the text of which must be incorporated in its entirety into the agreement. Art. 8. The price referred to in Article 7, e, is d

Art. 8. The price referred to in Article 7, e, is the price on the day of the signing of the contract. The King determines the modalities of the revision of the price.

Art. 9.The final delivery of the work may not take place until one year has elapsed since the provisional delivery, on the understanding that the final delivery of the common parts, including the entrances, has already taken place, so that normal habitability is ensured.


Art. 10. Neither the seller nor the contractor shall require or accept any payment in any form whatsoever before the agreement referred to in Article 1 has been entered into. If an advance or hand money is paid at the conclusion of the contract, the amount thereof may not exceed 5%. of the total price.

The promoter or the contractor may, upon execution of the authentic deed, be entitled to demand payment of a sum which, taking into account the advance or hand money paid, will be equal to the price of the land or the share therein that is being sold, increased by the price of the work performed,approved by an architect authorized to practice that profession in Belgium. A copy of the approval is attached to the deed.

In the areas of application provided for in the second paragraph of Article 1, the sum referred to in the previous paragraph is equal to the selling price of the property subject to the transfer of ownership, plus the price of the works carried out.

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 work carried out.

If a promise of agreement is not followed by its conclusion, the contractual fee payable by the purchaser or principal may not exceed 5 per cent. of the total price; notwithstanding its flat-rate nature, the contractual compensation may be increased or decreased if it is established that its amount is lower or higher than the actual damage suffered.

Art. 11. The agreement may not contain a repurchase clause.

Art. 12. If the seller or the contractor meets the requirements of the Act of 20 March 1991 concerning the recognition of contractors with regard to the nature and scope of the work assigned to him, he is obliged to provide security, the amount of which is determined by the King, as well as the manner in which it is deposited and released. If the seller or the contractor does not comply with the requirements of the law of March 20, 1991, as stipulated in the previous paragraph, he is obliged to guarantee either the completion of the house or apartment, or in the case in question, of the renovation or extension, or, in the event of dissolution of the contract due to non-completion, the reimbursement of the amounts paid.

The King determines the nature of the guarantee and the conditions under which it is granted, as well as the manner in which the purchaser or client is informed thereof. They have a privilege on this guarantee, which ranks immediately after the privilege provided for in Article 27, 5°, of the Mortgage Law.

Art. 13. Any stipulation that conflicts with Articles 3 to 6 and 8 to 11, as well as with the Royal Decrees adopted pursuant to Article 8, paragraph 2, shall be deemed not to have been written.

Failure to comply with the provisions of Article 7, Article 12 or the Royal Decrees adopted in implementation of these Articles will result in the nullity of the contract or the nullity of the provision contrary to the law. One or the other nullity may be invoked at the option of the transferee or the client, within the meaning of Article 1, and only by them, before the execution of the authentic deed or, in the case of a building contract, before the provisional acceptance referred to in Article 9.

The authentic deed must state that all the requirements of articles 7 and 12 of this law have been complied with.


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 francs to 200 francs or one of these penalties alone.

The provisions of Book I of the Penal Code, Chapter VII and Article 85 without exception, are applicable to the crimes referred to in this Article.


(NOTE : read euro instead of franc : W 26-06-2000, art. 2, En vigueur : 01-01-2002)

Art. 15. The King shall determine the date on which this law enters into force. However, this law shall enter into force at the latest on the first day of the fourth month following that during which it was published in the Belgian Official Gazette.


Royal Decree of 21 October 1971 implementing the Act of 9 July 1971 regulating housing construction and the sale of homes to be built or under construction.

Art. 1. § 1. The agreements referred to in Article 1, first paragraph, of the Act of 9 July 1971 regulating the construction of houses and the sale of houses to be built or under construction, state, in addition to the total price, the price of the terrain.

For the purposes of this Decree, the price of the building is considered:

a) in the cases referred to in Article 1, paragraph 1, of the Law of 9 July 1971: the total price minus the price of the land;

b) in the cases referred to in Article 1, paragraph 2, of this Act: the total price of the renovation or extension works.
The price of the building is at most 80 pc. subject to revision due to fluctuations in wages and related social charges, and due to fluctuations in the price of materials, raw materials or products used or processed in the construction work.

§ 2. For the purposes of the revision referred to in this article, account shall be taken of the most recent fluctuations in wages, social security charges, materials, raw materials and products taken up before the works to which the requested partial payment relates were started.

§ 3. The adjustment due to fluctuations in wages and social security charges may not exceed 50 per cent. of the price of the building may be calculated.

§ 4. For the purposes of this article:

1° among wage and social security fluctuations, fluctuations based on the average hourly wage, formed by the average of the wages of skilled workers, trained workers and accomplices, as determined by the National Joint Committee of the construction company for the category corresponding to the place where the construction site of the contractor is located. Wages are increased by the total percentage of social security charges and insurances adopted by the Ministry of Transport and Infrastructure;

2° fluctuations in the prices of materials, raw materials or products, the fluctuations based on the monthly index figure, calculated on the basis of an annual consumption of the main materials and raw materials by the construction company on the domestic market. This index figure is determined by the Commission of the Price List of Building Materials, which has its seat in the Ministry of Economic Affairs.

§ 5. The total price agreed in the contract for the renovation or extension works referred to in Article 1, paragraph 2, of the Law of 9 July 1971 must be at least 80% of the sale price of the property whose ownership is transferred and must be higher than 18,600 €.

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 to the contrary between the parties.

The refusal to proceed with delivery, together with the reasons on which it is based, is brought to the attention of the seller or contractor by registered letter.

§ 2. The occupancy or taking into use of the building or of the renovated or extended parts thereof, however, constitutes a presumption that the buyer or client tacitly accepts the provisional acceptance, subject to evidence to the contrary. The purchaser or the client shall be presumed to have accepted the works provisionally or definitively, as the case may be, if he has failed to comply with the written request of the seller or contractor for delivery by a specified date and if he has within fifteen days after he was summoned to do so by the seller or contractor by bailiff's writ, on the date stated therein, before the delivery has not appeared. This provision does not apply to the delivery of common parts of a building.

§ 3. The seller or the contractor who remains the owner of a part of the building he delivers does not exercise any of the rights attached to the co-ownership when the common parts are delivered. If for the validity of the provisional acceptance or the final acceptance of common parts, the presence of one of the co-owners is required and if he fails to appear within the reasonable time set by the seller or contractor by bailiff's writ, it shall decide what as far as he is concerned, the court on delivery.

Art. 3. The amount of the surety or guarantee referred to in Article 12, paragraph 1, of the same Act, amounts to 5 per cent. of the price of the building, if necessary rounded to the next thousand. The suretyship is lodged with the Deposit and Consignment Office, either in cash, in public funds, or in the form of a surety bond, in accordance with the Royal Decree of 11 March 1926 authorizing entrepreneurs, permit holders and contractors of works of public benefit to use, through the intermediary of the companies accepted for this purpose, a joint and solidary guarantee, or in the form of a global guarantee, in accordance with the Ministerial Decree of January 23, 1937 on the global guarantee.

Within thirty days after the signing of the agreement, the seller or the contractor must provide the buyer or the client with proof of the said security, signed by the Deposit and Consignation Office. When the contract has been concluded under a condition precedent, the thirty-day period starts to run from the day on which the seller or the contractor becomes aware that the condition has been fulfilled.

In the event of delay in the performance or total or partial non-performance of the agreement, attributable to the seller or the contractor, the buyer or the client may deduct from the amount of the surety the sums due to him because of the loss suffered .

The bond will be released in halves, the first half at provisional acceptance, the second half at final acceptance, in accordance with the modalities set out in the following paragraph.

Within fifteen days after the request, which was addressed to him by the seller or the contractor, and without prejudice to the fourth paragraph of this article, the buyer or the client shall submit to the Deposit and Consignation Office for cancellation for the first or second half of the bail, as the case may be. After the expiry of this period of fifteen days, the seller or the contractor, as compensation due by the buyer or the client, is entitled to interest, at the legal rate, on the amount of the surety for which no release has been granted.

Art. 4. The guarantee of completion referred to in Article 12, second paragraph, of the same Act, is provided by means of a joint and several guarantee whereby a credit institution as referred to in the Act of 22 March 1993 on the status and supervision of credit institutions, or a mortgage company as referred to in the Law of 4 August 1992 on mortgage credit or an insurance company that, as the case may be, meets the requirements of Articles 3 and 64 of the Law of 9 July 1975 on the supervision of insurance companies, undertakes , in the event of default by the seller or the contractor, to pay to the buyer or the client the sums necessary for the completion of the house or building of which the apartment forms part or, in the case in question, of the renovations - or the extension works.

The notary mentions in the deed of sale the agreement under which the suretyship was granted and adds a copy of that agreement to the deed of sale. The contractor shall provide the client with proof of the deposit within thirty days of the contract being signed.

If the building contract has been concluded under a condition precedent, the period of thirty days shall begin to run from the day on which the contractor becomes aware that the condition has been fulfilled. The obligation of the guarantor ends with the provisional acceptance of the works.

Art. 5. The Royal Decree of 1 July 1969 regulating the protection of those who acquire or build public housing or homes assimilated thereto, is repealed.

Art. 6. This Decree, together with the law of 9 July 1971, enters into force on 1 January 1972.



 


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