The five exclusions
| Situation | Reason for exclusion |
|---|---|
| Professional client | irrebuttable statutory presumption |
| Public institution | party not requiring this protection |
| Property not intended for habitation | outside the act's object |
| Property completed at the time of sale | no construction to come |
| Works entrusted to several parties | structural condition not met |
The last is covered separately, in the article on the single contractor test, as it is the most frequent.
The irrebuttable presumption
This is the act's sharpest mechanism, and it deserves understanding. It concerns the persons the text covers.
A purchaser or client whose habitual professional activity consists in building, having built or selling dwellings with a view to resale falls outside the act's scope.
Contractors, developers and estate agents acting on their own account are therefore covered. The capacity of the vendor therefore governs application.
The particularity lies in the rules of evidence. It is a statutory and irrebuttable presumption: no evidence to the contrary is admissible.
In practice a developer cannot show they were in fact acting as a private individual in order to obtain the protection. Professional status suffices, and the discussion ends.
The logic is clear: the act protects the weaker party, and a construction professional is not weaker facing another construction professional.
Public institutions
An exclusion encountered more rarely but worth knowing. It concerns public bodies.
Public institutions acting as purchaser or vendor fall outside the act's scope, notably in the construction of social housing. Their regime follows from other texts.
Such operations then fall under other frameworks, in particular public procurement rules where the institution acts as a contracting authority, covered in the guide on measurement and specification.
The use of the property
The test is habitation, and it carries a quantitative qualification. The principal intended use governs the classification.
The act covers property principally intended for habitation, whether a principal or secondary residence. Mixed-use property is therefore assessed in proportion.
The qualification concerns mixed property. Where a property includes a professional-use element, the act applies provided the living space is at least equal to the area devoted to that use.
An office building, a warehouse or commercial premises are therefore outside the scope, whatever the status of the person having them built.
Completed property
A logical but often misunderstood exclusion. It concerns completed property.
Where the property is completed at the time of sale, the act's conditions need not be met. The protection targets construction to come or under way, that is the situation where the purchaser pays before having a property.
Completion therefore removes the risk the act seeks to cover, that of paying without counterpart.
That distinction explains arrangements in which a developer waits for completion before selling, which is lawful provided no earlier commitment was entered into. The sales calendar then becomes a legal choice.
What still protects outside the scope
The essential point of this article: outside the Breyne Act does not mean without protection. Other regimes take over.
Four bodies of rules continue to apply.
The ten-year liability of architects and contractors, which belongs to civil law and applies independently of the Breyne Act, covered in the article on the layered liability regimes.
The obligation to insure that liability, covered in the article on compulsory insurance.
The mandatory involvement of the architect, which depends not on the Breyne Act but on the legislation governing the profession.
The general law of contract, with the guarantees it entails and the freedom to negotiate protective clauses.
The difference lies in the mandatory character. Under the Breyne Act protection is imposed. Outside its scope it must be negotiated and written, which is covered in the branch on contracts.
Grey areas
Three configurations have no automatic answer and call for advice. They sit at the boundaries of the scope of application.
The private individual who builds regularly. At what frequency does an activity become habitual within the meaning of the act.
Mixed property close to balance. Where living and professional areas are similar, characterisation becomes arguable.
Partial completion. A property nearly finished at the time of sale raises the question of the degree of completion required.
In those three cases application of the act is a question of fact, assessed in the light of all the circumstances.
What this means for a professional
Four rules.
Characterise the client before drafting, their professional status excluding the act beyond discussion.
Check the use of the property, and not merely its apparent nature.
Do not infer an absence of protection from an exclusion, but organise contractually what the act no longer imposes.
Have borderline situations checked, characterisation being factual rather than mechanical.
This article reflects rules and case law at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.