The four conditions of application
They are cumulative: a single missing condition removes the protection. The four conditions are therefore checked together.
| Condition | Content |
|---|---|
| Object | construction or sale of a dwelling to be built or under construction |
| Location | the property is situated in Belgium |
| Use | the property is principally intended for habitation |
| Structure | all the works are entrusted to a single party |
The fourth is the most decisive and the least known. It is covered in the article on the single contractor test.
On use, the act covers principal and secondary residences alike, provided the living space is at least equal to any area used for professional purposes.
A mandatory, not a default rule
That is what distinguishes it from most contractual texts applying to construction. Its provisions are of public order.
It cannot be derogated from. A contrary clause has no effect, even if accepted by both parties, and the contractor or developer cannot voluntarily place themselves outside its scope where the conditions are met.
It carries criminal sanctions against a professional circumventing it, which is rare in construction law and testifies to its protective purpose.
It was designed against a specific risk: the insolvency or bankruptcy of the professional during construction, when the purchaser has already paid.
What it concretely provides
Five protections, all directed at the same objective. They aim to secure the purchaser during construction.
Control of payments. No payment may be required or accepted before the agreement is concluded, and any deposit is capped.
A financial guarantee, whose form and amount depend on the professional's situation.
A written and detailed contract, whose minimum content is set by the act.
A two-stage acceptance regime, with a minimum period between the two, covered in the branch on acceptance.
Control of price revision, which may bear only on a limited part of the building price and must follow movements in wages and materials.
These mechanisms are detailed in the article on payments, guarantees and security. The deposit cap is set out there.
An indirect effect that is often decisive
A point purchasers discover late, and which weighs heavily. It concerns what the act does not cover.
A developer who has acted only as vendor does not, in principle, answer for ten-year liability, having not participated in the act of building.
Except where the sale falls under the Breyne Act. In that case they do answer for it.
It is therefore a major protection, going beyond the insolvency risk alone. It is covered in the article on the developer and their position.
A guarantee regime in question
The current development that makes this subject unstable, and which must be known before relying on the present regime. It concerns the financial guarantee regime.
The Court of Justice of the European Union has held that the guarantee regime of the Breyne Act is contrary to European rules on the freedom to provide services. A reform of the scheme is therefore expected.
The reasoning is precise: the act distinguishes between guarantee requirements for approved contractors, which are more limited, and those for non-approved contractors and developers. Yet only contractors can be approved, which excludes foreign developers from the more favourable regime and in practice compels them to work with an approved Belgian contractor.
Belgium was unable to show that the distinction was justified, necessary and proportionate.
A reform of the guarantee regime is therefore likely. It does not affect the act's other protections, but it makes it essential to check the state of the law before concluding, as the article on developments to monitor recalls.
What this means for a professional
Four rules.
Check the four conditions before drafting, not afterwards, since the applicable regime changes the whole contract.
Do not believe a clause can set the act aside where its conditions are met.
Inform the client explicitly of the effect of the structural choice, a separate-trades arrangement placing them outside the protection.
Check the state of the guarantee regime before concluding, reform having been signalled.
The articles in this branch
The article on the single contractor test covers the decisive condition. The applicable test is set out there.
The article on payments, guarantees and security covers the financial mechanisms. The five protections are set out there.
The article on what the Breyne Act excludes covers the exclusions. The exclusions are listed there.
The article on checking applicability gives a five-question method. The method is given there step by step.
This article reflects the position of the rules at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.