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Refusal to sign a report and hand over the keys during a delivery? What can you do about it?
1) During the provisional acceptance, discussions can often arise, resulting in a construction promoter/project developer or contractor refusing to sign the provisional acceptance report and hand over the keys.
A refusal of delivery cannot simply be accepted for the following reasons!
The contractor or construction promoter/project developer shall notify by email or letter and by post that they wish delivery on the date of (..........)
The buyers agree to this delivery on a mutually chosen date that suits both parties and a construction expert they appoint.
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Entry is only possible if it appears that the home has a normal habitability that is necessary to be able to use all facilities.
2) If it appears that normal habitability is not guaranteed due to the lack of the most important elements necessary to guarantee normal habitability, provisional acceptance may be refused.
Some examples:
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There is no water or electricity and no inspection of either.
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Hob/fridge missing.
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You cannot shower or wash at the sink.
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Destructive works have to be carried out because they have been poorly executed, such as redoing floors and wall tiling, etc.
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Sewer connection to public utility has not been done, etc.
3) If normal habitability is guaranteed, and the developer/contractor still refuses to sign a provisional acceptance report and to hand over the keys, due to a dispute over settlements... this is not allowed!
The developer/contractor may not refuse delivery in this case, and must therefore proceed to signing the report and handing over the keys. The report must then state that the settlement will be settled afterwards, subject to reservation, so that both parties can come to an agreement, and this finally of all invoices.
The most common disputes are often the fines for delays that the contractor has to pay, and postponed works and postponed payments due to, for example, missing appliances in the kitchen, works that are not finished, etc.
You obviously do not pay the amount due/not due for the time being, take into account an amount of approximately €25,000 that you keep behind (the last payment according to the agreement and the remainder of the additional works). You are not even allowed to make these payments before the provisional delivery, even if the building contractors demand it! This last payment and the additional works are not linked to a delivery but to the handing over of the keys!
4) If the building contractor still refuses to sign the report and hand over the keys, you can take action with a bailiff and a locksmith to arrange for the transfer of the property on the same day, whereby the bailiff will determine that the property is normally habitable and record this.
The bailiff will then make his tour of the home and record all comments in his report, as well as ensure and record that the locksmith has installed new cylinders that provide full access to the home.
The building contractor remains liable to resolve all comments noted by the bailiff within one year of taking possession of the home and within a reasonable period of a maximum of 60 working days, except for matters that need to be ordered, such as new glass in exterior joinery, damage to kitchen and bathroom cabinets, etc.
If the building contractor does not agree with these steps that have been taken with a bailiff and locksmith, he is free to go to court...and not you, but the question is whether he will win...the chance of that is very small!
Before I "had" to take these steps myself, I did everything I could to avoid this, because I am not in favor of concluding a provisional delivery in this way... but if the other party persists, I have no other choice "however much I find it a great pity, and have to do this with reluctance". And unfortunately I have had to do this several times, which proves an unprofessional approach, and too little knowledge of the legislation in this regard.
Some construction contractors (or their employees) think that they are free to do whatever they want and that they can ignore the regulations (construction housing act)! "Not so"
I have also had employees who are not stress resistant, because during the construction work it becomes too much for them (many problems with subcontractors and too high a workload and a great deal of responsibility for monitoring the site, for example), and at the end, during a provisional delivery, it becomes too much for them, because of certain comments I make, something breaks in them, and they then start making mistakes by making incorrect statements and taking incorrect actions... I understand them clearly, I have also been on the other side and did not have that problem.
But making stupid mistakes and taking wrong decisions at the last minute is not an option for construction entrepreneurs!
I recommend the following to you:
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Stay calm yourself and don't panic, don't defend yourself too much because then you will make wrong statements and it will escalate. If the building contractor doesn't want to sign... no problem, you don't need their signature!
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If you start to panic, they will take advantage of this by putting you under even more pressure, to give in... to meet their wishes, and to have you sign a report, if you do that you can no longer go back and they have achieved their goal, that is also where they want to go.
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Do not sign the report yourself if it has not been drawn up properly and there is no agreement on the settlement.
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Do not leave the house yourself at the end, even if they indicate that they are leaving. They must leave the house!
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let them know that you have contacted a bailiff who will come immediately with a locksmith. It is also better that you have a bailiff on standby in advance for such problems that you expect to come, so contact a bailiff in advance.
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You can deduct the costs of a bailiff and locksmith from the final settlement.
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Have the bailiff draw up a report in which he clearly states that the house is in a normal state of habitability, and that there is only a problem with the final settlement that the builder does not want to admit, such as a fine for delay, etc. and does not want to sign the transfer of the house (report), nor does he want to hand over the keys.
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After other locks have been installed and the bailiff has been there, the transfer of the house is a fact and yours, because in this case the building contractor was not allowed to refuse the provisional delivery (transfer of the house)!
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The end result is that the builder realizes afterwards that he/she acted wrongly, and this after obtaining information from their own lawyer. Because of this, they usually act constructively and cooperatively afterwards to help find a solution for both parties..." finally ". This could have been prevented if the builder knew the application of the legislation, and tried to find a solution for both parties in advance, instead of being aggressive...you don't gain anything by that.
Below is an example of discussions I had with a construction contractor. My letter to the construction contractor did not cost the client anything and I helped her a lot.
Discussions with settlements and postponed works!
And this especially at top companies in the highest class...7 and 8!
Far too often there are discussions about whether or not payment is justified (final invoice).
Each time, the contractor or building promoter abuses the situation to force delivery and demand the full sum... whereby the entire work has not even been delivered/executed and completed.
I notice that the buyers at is often pushed with their backs against the wall by contractors or property developers because they deliver the homes much too late than what they had previously promised, and the buyers have to leave their current home or rental property.
Each time I have to take steps with the buyers' approval to enforce delivery, because they refuse this with the notification (and this in advance and often by email...) "If the full payment of all outstanding amounts has not been paid before the provisional acceptance... the provisional acceptance will not take place... all payments must be made before we start delivering!"
Is not true...
"I will then respond with an email below..."
Dear sir.....,
May I point out the following...
If you request a provisional acceptance, it is assumed that all works have been carried out, including the common parts.
You may of course deliver the private parts earlier if the common parts have not yet been delivered even provisionally... and access to the private parts is possible under certain conditions...
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Access to the common areas (floors) must be... and access must be safely accessible.
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The stairs must be safe and the handrails must be present.
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The lift must be inspected and put into service.
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Fire safety must have been inspected and the control box in the entrance hall must be active and not out of service... otherwise there is no coverage via the VME fire insurance policy upon transfer of the private parts if a fire breaks out, and a causal link can be established with the fire safety.
You are also obliged to follow the Breyne Act and BW.Art.14 and you cannot/may not violate them.
I note the following... you request full payment before delivery takes place... is not correct and according to legislation.... read more below!
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 payments may not exceed the price of the works carried out! This Art.10 is very clear... and also applies if a provisional acceptance is requested, and this even before the completion of all work, including common parts, and both parties agree to deliver if entry into the home is possible... even if the entire work has not yet been completed... one may therefore not claim full payment!"
The building promoter/contractor cannot therefore delay delivery with impunity. "For the buyers..."You can therefore deduct the price of the works NOT carried out from your last partial payment, including for communal parts.”
If delivery is requested by the building promoter/contractor and both parties have agreed to it, this can no longer be refused on either side... unless the buyers/construction expert determines during the provisional delivery that there are construction defects that are of a constructive nature which makes entry and normal use of this property impossible, and we can still refuse this delivery,and if a construction expert is present... even the buyers have the right... to deduct his costs from your final invoice because the provisional acceptance could not take place!
"I think this is very clear!"
If you still persist in claiming full payments and this in the case of deferred works/deferred payments (and that also includes the common parts) and refuses to deliver a provisional acceptance report signed by both parties with all visible comments, as well as refuses to hand over the keys...we are forced to call in a bailiff and a locksmith...These additional costs that the owners have to incur unforeseen will therefore be deducted from your final invoice as well as the longer duration than expected to complete delivery if a construction expert is present.
Unfortunately, I have had to apply this several times in the past at other companies below class 7/8. The bailiff will draw up a PV here, and there will be an extra tour with the bailiff during which all visible and extra visible comments will be noted in the PV including photos, and the bailiff will supervise this during the change of cylinder at the entrance door of the apartment. /home and also take photos and mention them in his PV. You are also obliged to immediately hand over all keys that provide access to the building, including access to the underground parking...If you do not do this, the appointed lawyer will have this requested through the court in an urgent procedure with a penalty per day and additional costs.
After these forced entries into the home, you are also obliged to resolve all observations of visible defects within a reasonable period, which will be set at a maximum of 60 working days... except for matters that remain unanswered during the provisional acceptance and after this entry. must be determined and ordered... no deadline can be set for this... but it must be carried out within one year... if not, the final delivery will be postponed until everything has been resolved! In addition, the private parts can only be finally delivered after the common parts have been finally delivered!
I am asking the bailiff (I also pass this on to my customer) to be on standby on 18.12.2023 (provisional acceptance has been requested on this date) as well as the locksmith.
This is legal and legally valid...you cannot change that! But I hope it doesn't have to come to this...stick to the legislation of the Breyne Act!
Also, and this according to data from a third party that I have received but has not yet been confirmed... it appears that you have already delivered several apartments and the have demanded full payments that are contrary to the Breyne Act and BW.Art.14... if a bailiff has to act for my customer, we will undoubtedly have this determined and included in his PV.
May I also remind you that every buyer has the right to have notes made in the PV of provisional delivery... and may have things noted down subject to conditions... you may not and cannot refuse this!
I have already given my client a complete update on what her rights are but also her obligations (including your rights and obligations). All assessments of comments must be done correctly according to the maximum permitted deviations...the standards and distances of assessments...my client is aware of this and will be further explained how to assess.
Hoping for a correct handling of a provisional delivery...
Kind regards
Noël Van Goethem
VG Expert - Construction expert
Blokstraat 92/bus 30
T: 0472/59.18.98
"I'll respond again....."
Dear sir...,
I just heard from my customer that in case of disputes you refer to the signed agreementarrival.
May I point out that if an agreement has not been drawn up in accordance with the legislation of the Breyne Act and the Dutch Civil Code... this is considered unwritten and the buyers themselves have the right to request a cancellation of the sale... unfortunately I already have that in have to apply the past in collaboration with a lawyer.
Also in the event of possible intervention by a notary... this is allowedeven the notary will not allow the execution of the deed if it contains contradictions that have not been applied in accordance with the legislation!
Also with a penalty clause, the amount per calendar day must correspond to the rental value of a house or apartment per month... even if this is described differently in your agreement, which is usually counted at €20 to €25 per calendar day.
You cannot and may not circumvent the legislation... you have to adhere to it... even if the buyer has signed your agreement!
I think that is very clear to you!
Kind regards
Noël Van Goethem
VG Expert - Construction expert
Blokstraat 92/bus 30
T: 0472/59.18.98
Contractor responds...
Dear,
I will pass the following on to our counsel and will get back to you.
Kind regards,
.............
............
"I respond to that….”
Best......,
You may do that, and I even recommend that you do so...others have already done this...with the answer that mr. Van Goethem Noël is right.
Kind regards
Noël Van Goethem
VG Expert - Construction expert
Blokstraat 92/bus 30
T: 0472/59.18.98
Contractor responds to my customer....
Dear Ms......,
For the avoidance of doubt: the purpose of the provisional acceptance is to make a normally habitable home available to the buyer, whereby any imperfections will be identified adversarially. It cannot be denied that the apartment in question is in a normally habitable condition.
N.a.v. provisional acceptance, the buyer meets the final payment term.
Art 10 of the Housing Act states that partial payments may not exceed the price of the work carried out. Art. 10 of the Housing Act therefore only applies to goods and materials that have not yet been delivered/installed/exported. Payments must be made if comments are made on the work carried out for all delivered goods/materials!(Here they finally admit that the full payment should not be claimed)
It is true that the splashback in the kitchen has not yet been installed, but the cost price is €397.80. That's the only material not delivered! This amount of €397.80 is therefore not in proportion to the payment of €7,907.60 that has not been made to date.(Here they forget...that the common parts are also included, these works are not completed at all!)
In order to resolve this matter in a constructive atmosphere, we invite you to proceed with provisional acceptance on 18/12 e.k. at 12 noon. at noon upon payment of the balance of the price and release of the deposit.
We hope to be able to proceed with a provisional delivery with you and with a positive and solution-oriented attitude.
In the negative case, I fear that, with great regret, we will have to take the procedural route. We hope to avoid this together with you.(Here they start threatening again...and now...with a possible procedure...."and I burst out laughing"...and here we respond again to his stupid statement...because he forgets that they are at fault and not my customer! And not a single contractor/construction promoter has yet gone to court for this... because they know they will lose this, and the excessive costs of a lawsuit are not worth it doing).
Kind regards,
After our response to the above answer from dhe contractor...the contractor responds...
Best.....,
I have consulted with our management.
We do not want to bring matters to a head and we want to find a solution together.
Can we reach an agreement that you will leave €3,000 of the remaining amount outstanding until the outstanding points from the provisional acceptance report have been resolved?
I based my calculations on the following amounts:
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Splash wall: €397.80
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Kitchen plinth and any comments during our meeting on 18/12: €1000
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Outdoor construction: €1,600
Would you also like to confirm to us that you will pay the outstanding amount immediately after solving the points in the provisional acceptance report?
I hope that we can still get through this together and look forward to the provisional delivery, December 18.
Kind regards,
...........
...........
Here they givefinally fully admit that they were doing the wrong thing! But I note that the amount of €1600 is far too low for the deferred works/deferred payments on the common parts!
Here too we will calculate the amountlet adjust to the actual sum of postponed works...note the fact that they have already committed infringements by claiming the full sums for the previously completed apartments!
Everyone (buyers) pays a part of these common parts... so you have the right to withhold this sum of deferred works until they have been fully carried out... otherwise you no longer have any rights (a stick behind the door ...and certainly with construction developers...no more guarantee after provisional acceptance!) to force them to have the works done as quickly as possible...since everything has already been paid for, andthe work still to be carried out can be postponed by the contractor/building promoters... as no longer urgent... because everything has already been paid for!
I also noticed from having been on the other side (it comes and goes there)... that customers need guidance/proproject managers/site managers want to do everything they can to eand delivery and to enforce full payment... even if the works have not been completely completed... in order to show their employer that they are doing well and that they have made their mistakes/to conceal blunders/mistakes or incorrect assessments... and to drastically shorten the period of late delivery (and this actually due to my own fault of poor follow-up/planning/orders, etc...) because after full payment and delivery, you no longer have any rights regarding the penalty clause, e.gYou can no longer put pressure on them to complete the work to be carried out more quicklyOpen.
You have more rights than you think!
Don't be influenced by sweet talkers and the many promises they make... but iteventually Failure to comply!
After my first reaction...they always prance...and gothey in defense by sending my customers emails (I'm already used to that...and without me in cc. ) and to threaten...to frighten...to make insecure...and even (on a site by a site manager) to attack a customer to threaten "that if you continue working with Noël there will be war"...where are we going...
I always remain calm and let the contractor/construction promoter know correctly that they are at fault and are acting incorrectly! If they continue to persevere after giving in many times, and a lot of patience on my part... that they must inquire about this... if necessary with their lawyer... and then still not give in... then I will force them to their knees by taking measures subject to approval and on behalf of my customers of course (apparently I am the only one who does that?...I have heard).
Eventually they all give in...they have no choice...and in some cases after my actions, only to finally realize that what they did and demanded was not correct.
They ask you that you are correct and pay correctly...then be correct yourself first...and adhere to itn the regulations of the Breyne Act and the Civil Code.