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Works not yet fully completed on the day of provisional delivery

 

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The day of provisional delivery

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• Is entry possible?(i.e. at the time of provisional delivery...of the house, you can also use all facilities and housing) then this is referred to as delivery of a house or apartment (VO) and the contractor or building promoter is no longer responsible for this house....then they may no longer enter your home of their own accord immediately after signing this PV...without your permission...even if you haven't received the keys yet!

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  ​eg: can one cook / is there water...and correctly connected to the public grid...and can one shower...or take a bath / is there elektriek​...en correctly connected to the public network...not a temporary solution! / are there floors everywhere / are there internal doors / are the internal stairs installed / is there safe access to the house...etc... 
  
   

If the items described above are missing, one can already speak of an impossible entry into the home and the delivery must be postponed...NB...a delivery can only be refused if an example of the above items is not in order or placed! 

For all other comments during a provisional delivery, such as plinth not properly finished / kitchen cabinet doors are not properly adjusted / sealant work is not done properly / plaster still needs to be touched up ... etc ... one cannot refuse a delivery and these should be comments on delivery points that need to be repaired or updated after the provisional delivery...and this within 1 year after the delivery date! All payments and final settlements (final balance) must therefore be paid immediately after the provisional acceptance.

What is the difference between deferred works and comments and penalty clauses! 
 

The contractor or building promoter indicates that he wishes to make a delivery...and to include the work still to be carried out in a PV of provisional delivery as a delivery point....eg. garden fencing in wire or other ... tiling outside / patio ... facade cladding ... kitchen appliances ... shower taps ... electricity connection ... etc ... I will give here just a few examples of many. (also read Art.10 of the Breyne Act)

Is not correct... because then it becomes a delivery point and no deferred works ... and there they use a year to solve this, which is not correct ... also you can no longer invoke a late penalty ...even after provisional delivery...if both parties agree to deliver, of course! You can also postpone a delivery for this... regardless of both, they will always have to pay a fine per calendar day if they deliver the planned works too late according to the agreement!

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The most important thing is how you formulate this on your PV of provisional delivery!Of course contractors and building promoters don't like to see this coming....because that costs them money of course. They will do everything they can to avoid this and try to deliver anyway with the aim of considering this as a delivery point...which is not allowed! 

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Penalty clause 

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Do not forget to send a registered letter before the expiry of this agreed term according to the sales agreement...at least a few days before that...in which you indicate that you invoke the penalty clause for late delivery of the property...Do you this after the agreed delivery date, it counts from the date of yournotice of default. You should not take into account weather absences, etc. ... it is up to them to provide proof that they also rely on weather absence days and add this.

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So pay attention when you make a delivery!

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Deferred works

 

Works that have not yet been fully/or not completed on the day of the provisional delivery are referred to as deferred works!

In the case of deferred work, the contractor or building promoter must follow the following rules.

Work that has not yet been carried out after completion...are deferred works and may not be regarded as a delivery point in the case of provisional delivery...In the case of deferred work, this must be carried out as soon as possible after delivery...and if the term has been exceeded here and these deferred works are still not performed, one can invoke a fine for lateness here...this is in most cases 25€ per calendar day!

 

Deferring payments after a delivery!

 

Deferred payments due to deferred works... That means that for each work and materials or equipment not yet delivered... can invoke a deferred payment with an amount equal to the value of these works and materials and equipment still to be performed...etc...

 

For this, they must submit a document during delivery that will be signedby both parties of deferred works and payments with these amounts in detail...and is therefore immediately deducted from the final balance still to be paid...that's why I always give to everyone...pay your last installment...and in most cases that is 5% and also the remaining additional work...not until after provisional delivery... because a payment - final balance is not linked to a delivery ... but to the handing over of the keys to the house ... don't be fooled! Also let them know in advance that you want a deferred payment.

 

Finally: contractors and construction promoters who refuse to put your justified comments on PV during the provisional acceptance...is not correct...they should write this down...don't be fooled...also note down agreed terms for carrying out repairs and works that have not yet been carried out on PV...a maximum of 60 working days, regardless of materials and delivery terms still to be delivered...I will give you a few examples:

 

• Update occupation/missing skirting boards/chambrante doors/caulking etc... as soon as possible and this before the painter does his job (within 1 week)

• Repair scratches on exterior windows (polishing) within 3 months.

• Repairing scratches on window profiles...depending on the weather...can be repainted on site...can last longer than 3 months!

• Renew kitchen cabinets or worktop ... within 12 weeks ... materials and raw materials to be obtained from the manufacturer depending on the duration.

• Etc....

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STATEMENT OF PROVISIONAL ACCEPTANCE

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Agreement example

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In the presence of property promoter-seller, owner-buyers and general contractor (architectunwellpresent), it was established that, insofar as it concerned easily observable works, these were carried out in accordance with the specifications and the materials chosen, always subject to the comments noted in this report, which must be completed within the terms agreed herein ( all of which commence on the date of this report).

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The seller acknowledges receipt of full payment of the construction price, the requested additional works, the various fees and appurtenances and the keys to the house. The buyer acknowledges receipt of the keys.

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Between this provisional acceptance and the final acceptance, the building promoter remains responsible for invisible defects, in accordance with articles 1641 et seq. of the Civil Code and articles 1792 and 2270 of the Civil Code (10-year liability).

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The buyers declare that they will maintain the building with due diligence.

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The parties acknowledge that ...... will retain key to the property in order to facilitate the timely completion and deferred works set forth herein. The owner-purchasers reserve the right to reclaim this key at any time for any reason (e.g. as soon as they will occupy the property in order to ensure their privacy). ...............(contractor or construction promoter) will carry out the finishing points and deferred works according to the rules of the art and the works will always be checked for possible damage both before and after the works. Any damage already present for additional work must be reported to the owners-purchasers and is not suspected.

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An example that you should definitely include in a PV for"notes..."

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*............(contractor name) and ................(naam construction promoter) have confirmed that finishing points (e.g. 1 / 2 / 3)...within - (e.g.1 week) will be resolved as the interior painter starts his work on ...............

 

............(contractor name) and ................(construction promoter name) will provide photos during the repairs for the following versions: (this is intended for versions of which you can no longer see and check this, e.g. under floor ... in plaster reinforcement, etc ....)

1. .....................................

2. .....................................

3. Etc...

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The parties acknowledge that if any finishing points (comments in PV) are not corrected in time, a late penalty of EUR ........(according to sales agreement) per calendar day, without prejudice to the right of the owner-purchasers to claim higher actual damages. The parties recognize that these provisions are reasonable in order to protect the legitimate interests of the owner-purchasers.

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An example that you should definitely include in a PV for "deferred works..."

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The parties acknowledge that another tour will be organized, according to the principles that apply to the provisional acceptance, as soon as the deferred works have been carried out, in order to allow the owner-buyers (possibly assisted by a construction expert) to check the conformity of the execution and, after correct execution of this...then only to give an approval when a point has been delivered (per part).

 

Provisional acceptance is provisionally accepted only under the strict condition that all deferred works are carried out as quickly as possible, and in any case within the aforementioned periods, as in principle they had to be carried out within the period set in the sales agreement.

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The parties acknowledge that to the extent that any deferred works are not corrected in time after agreements have been made regarding terms stated on the provisional delivery report, by operation of law and without notice of default (i) ................. ..(building promoter or contractor) will refund a lump sum corresponding to the actual value of the works and materials to the buyer-owners, upon first request, and (ii) a late penalty of EUR 25 (e.g. see sales agreement) per calendar day until all outstanding points have been resolved, on the understanding that to the extent that several completion points have not been completed in a timely manner, the total late penalties per calendar day will continue, without prejudice to the right of the owner-purchasers to claim higher actual damages. The parties recognize that these provisions are reasonable in order to protect the legitimate interests of the owner-purchasers.

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The parties acknowledge that to the extent that the deferred works were not delivered on time during the provisional acceptance and the deadlines have expired according to the signed agreement, the late penalties per calendar day will continue until all deferred works have been fully completed.

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The past has shown on several occasions that nevertheless all...many promises and kindness of these persons involved during a delivery...to resolve all outstanding points (comments and deferred works) as agreed (with a broad smile) and this is stated in PV with agreed deadlines...in practice this is a disaster...and they never keep their agreements...I see many emails from customers who eventually become impatient and to which there is little or no response from the contractor or building promoter ...when they finally come to solve these matters...not even after a period of one year until the final delivery according to the breyne law!

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It is not because they think…according to the breyne law that they have a year for these remarks (however, it is not explicitly stated that they are given a year for this)…that this should be regarded as a reasonable period of time to resolve outstanding points to solve...which should actually be solved much faster!

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Therefore agree on reasonable terms and have them mentioned in PV...as well as the additional condition I wrote above. They cannot refuse!

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If this eventually has to go to court...then you are in a stronger position to claim these late fines and enforce the works.

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It's about time you act more justly against all the injustice and laxity/casuality of those who sin against these earlier agreements and let it run its course...because they apparently have no time left and their attention is on other sites. ..and send you their cat!

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Then they should take on less so that the sites can be better followed up to quality executions and this according to the rule of art and standards ... and in the end they have fewer outstanding points or deferred works!

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Finally

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I have a lot of clients requesting my assistance…but my intention is to provide everyone regardless of whether they want assistance…or don't have the ability due to budget…lots of information in advance that they need to help themselves to be able to protect against mala fide practices and unilateral intrusiveness of all building contractors and building promoters... and bad executions etc...

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They think that only they have the right to write down their demands and have them signed…and how the entrepreneurs want to fully cover and protect themselves…but what about the buyers or owners and their rights…nevertheless the breyne law has been in force for a while...are there some serious holes in here already...and loopholes to cover themselves...or are they just ignoring the breyne law?

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You also have rights...so let this apply...let us know if you disagree. 

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A modified and updated example above of how to have a PV drawn up has also recently been used by myself at some large companies... albeit under great pressure to get this on paper and signed by all parties...they must do this then allow it...because that works on both sides...if they keep their agreements there is nothing wrong...if not then....

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