Construction law – Sale Off Plan - liability contractor / architect
Construction law - sale on plan - liability contractor and architect
1.Classically, one has a building contract with the contractor (s) and an agreement with the architect.
This building contract can provide for a fixed price, fixed unit prices on the one hand and partly fixed, or on a cost-plus basis (the hourly rate and unit price for material are known). He must have the necessary professional competence and comply with the law for contractors in the Royal Decree of 29.1.2007. Failure to do so will lead to nullity of the building contract, but if the client knew or should have known this, he cannot claim compensation, according to the court of appeal Ghent.[1]
A survey plan is normally drawn up beforehand, so that a fixed price is pursued, and additional work are only possible with approval. They can be proven eg. based on e-mails.
Since the law of 9 June 2017, the contractor who sets up a house must be insured for his 10-year liability (stability of the building). The architect must check this. It is true that the architect (as well as "other service providers") must also take such insurance. This is a major protection. Often contracting companies (especially when a partnership) go bankrupt after a while. Now the victim has a direct claim against the insurance company. A personal guarantee from the manager also remains possible.
2. The architect has the duty to monitor, especially in delicate and difficult to reverse phases of the construction process.[2]
3. Building can be done via the "key on the door" formula, or sale on plan.
The agreement is concluded before the building is completed. A series of protective rules (Breyne law) apply. In case of sale on plan, payment is made per installments as stipulated by law. In an ordinary agreement it is determined by the parties. It happens quite often that a contractor wants to have the largest part paid in the initial phase. This can lead to problems and even scams. (eg contractor in bankruptcy, and possibility of misappropriation of funds).
4. In the event of normal progress and completion of the works, there is the provisional acceptance phase
The client must accept the work performed. The provisional acceptance by the client only implies the provision of the works by the contractor to the client, in order to establish that the works have been completed.[3] Theoretically this is not an acceptance of the works, but can acquire that meaning (e.g. when the works that are not in order are listed on the PV provisional acceptance and the client has the assistance of a technical counsel such as the architect)[4] Normally, the client, architect and contractor come together and the building is inspected and the defects are noted in a report, signed by all parties. This signing covers the visible defects. So check carefully. If the building is taken into use immediately, without such a PV, this can be regarded as a provisional acceptance.
5. After this phase, the responsibility of the contractor (and possibly the architect) can only be retained for hidden defects or defects that affect the stability of the building.
It is important to take timely action against this, since construction law usually provides for a short or reasonable period within which the defects must be made known, and for which even a procedure must be started.
An exception to the short or reasonable term is provided by articles 1792 and 2270 CC. These articles relate to defects that affect the stability of the building and have a term of ten years. If 10 years have elapsed after delivery, these articles can no longer be invoked. A distinction between delivery and acceptance is imperative)[5]. As a rule, the term starts to run from provisional completion, but case law[6] accepts that the intention of the parties must be verified. [7]
Experts from the insurance companies often intervene in discussions. Tactically, these are sometimes aimed at delay so that the dispute would end or too much time would have passed.
When repairs can no longer be postponed, it is best to appoint a legal expert as soon as possible.
Incidentally, an expert will usually also determine the costs for repair and damage, so that this is also clear. The importance of this should therefore not be underestimated.
6. There are also dozens of rules and circumstances that can play a role with regard to responsibility and compensation:
- construction works without an environmental permit can give rise to a rejection of responsibility and compensation[8] , in other courts only the net values (no profit) due to nullity and the consequences of the nullity doctrine. The Court of Cassation[9] assumes that an agreement to build a house in violation of urban planning regulations has an unauthorized object (and thus nullity), but if it can be remedied, the agreement will stand.
The office also has special experience in advising and providing assistance with regard to expertises, deliveries, final settlements, warranty disputes and claims.
If you would like more information about construction law, be sure to read the following articles:
Treatment for hidden defects
Liability periods in construction and contracting law
The importance of contradictory findings in the case of alleged damage
The direct claim of the subcontractor
Building infringements
Possibilities for action in case of faulty execution of agreements
Appeal against a urban planning permit from a neighbor
Law Breyne
About zonal homes
The importance of the correct information for the conclusion of a real estate sales agreement
Public procurement: take timely action
[1] Ghent Court of Appeal (16 ° K) 22.3.2019, TBO 2020, pg 261
[2] Court of First Instance Brussels, 4th chamber, 28.9.2018, TBO 2019, p. 430
[3] Court of Cassation 4.3.1977, Arr. Cass. 1977, I, 730
[4] Court of Cassation.24.2.1983, Arr. Cass. 1982-83, 808
[5] M. Thielens et al. Provisional and definitive delivery, receipt and acceptance: what's in a name ?, TBO 2020, pg. 232
[6] Court of Appeal Brussel 27.6.2010, Res.Jur.Imm.,2011,295
[7] Court of Cassation 28.4.2017, TBO 2020, pg. 249
[8] Court of Appeal Liège , 20.9.2018, Contract Law Journal, 2019, p. 121
[9] Court of Cassation. 7.11.2019, RABG, 2020-3, pg.189