The five questions
1. Is the property in Belgium and principally intended for habitation. For mixed property, the living space must be at least equal to the area devoted to professional use. A negative answer means the act does not apply.
2. Is the construction still to come or under way. A property completed at the time of sale falls outside the scope, the protection targeting payment before counterpart.
3. Are all the works entrusted to a single party. This is the decisive question, covered in the article on the single contractor test. Several firms means no Breyne Act.
4. Is the purchaser or client a construction or property professional. If so, the irrebuttable presumption excludes them, with no contrary evidence possible.
5. Is a public institution involved. In that case other frameworks apply, notably public procurement.
Four favourable answers out of five do not suffice. The conditions are cumulative.
| Question | Unfavourable answer | Consequence |
|---|---|---|
| Property in Belgium, principally intended for habitation | No | The act does not apply |
| Construction future or under way | Completed property | The act does not apply |
| All works entrusted to a single party | Several firms | The act does not apply |
| Purchaser a construction or property professional | Yes | Irrebuttable exclusion |
| Public institution | Yes | Other frameworks apply |
The order matters
The questions are not equal, and the order proposed saves time. A negative answer early in the list closes the enquiry.
Questions 1 and 2 are the quickest. They are answered by reading the object of the contract, and they immediately rule out a share of situations.
Question 3 is the most frequent in practice. It settles the majority of real cases, and it is the one clients overlook.
Questions 4 and 5 concern rarer situations but settle matters definitively where they apply.
Signals to spot in a contract
Four indications suggest the act applies, without always saying so expressly. They are spotted when reading the draft contract.
An express reference to the act. Some contracts cite it, which is a strong but not decisive indication: the reality of the situation counts, not the mention.
A deposit limited to five per cent. That cap is characteristic of the regime, and compliance suggests the professional knows they are subject to it.
Mention of security or a completion guarantee, an obligation specific to the regime.
A distinction between land price and building price, imposed by the act to frame price revision.
The absence of those elements in a contract meeting the conditions is a warning sign, reflecting either ignorance or circumvention.
What does not determine application
Three misleading elements, often wrongly invoked. They are not enough to set the act aside.
The value of the project. The act contains no financial threshold.
The standing or size of the professional. A large firm is neither more nor less subject than a small one.
The parties' intention. The act being mandatory, it applies as soon as its conditions are met, and a contrary clause has no effect.
When to carry out the check
Timing matters as much as method.
Before signing, obviously, since the regime governs every clause.
Before choosing the project structure, earlier still. The choice between a main contract and separate trades determines whether the act applies, and it is made well before the contract is drafted.
On any change of arrangement during the project, a shift from one structure to another changing the applicable regime.
In case of doubt
Three useful reflexes.
Write down the question and the answer, with the facts on which it rests. That record will serve if characterisation is disputed.
Do not rely on the professional's position. A vendor or contractor may genuinely believe themselves outside the scope.
Consult a lawyer on borderline situations, application of the act being a question of fact assessed by the courts, and the consequences of a characterisation error being significant on both sides.
What this means for a professional
Three rules.
Ask the five questions before structuring the project, not before signing.
Inform the client of the result, particularly where they are a private individual and the answer is negative.
Keep a record of the reasoning, characterisation being open to challenge later.
This article reflects a checking method at the date of verification and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.