On January 1st, 2022, the law regulating the construction and sale of dwellings to be built or under construction, better known as the “Breyne Law”, celebrated the 50th anniversary of its coming into force.
This law, which is said to have been hastily passed following the resounding bankruptcy of the Belgian developer ETRIMO, is an important milestone in the security of turnkey real estate sales in Belgium. It is still invoked every day in real estate disputes and remains more topical than ever.
This is the opportunity to come back throughout the month of January on specific questions regarding the application of this law:
- Its scope of application
- The contractual formalities to be respected
- The mandatory financial guarantee to be constituted and its release
- The particular role of the architect
This fourth section is dedicated to the particular role of the architect.
1/ Do projects subject to the Breyne law require the intervention of an architect?
Work for which building permission is required legally requires the assistance of an architect. Projects covered by the Breyne law are no exception to this principle.
However, the question arises as to who he should contract with in the context of a project subject to the Breyne Act: the developer or the purchaser?
The choice will most often depend on the type of project considered.
2/ What precautions should the developer take?
The architect must respect the principle of the incompatibility of the architect’s profession with that of contractor and the principle of independence.
- If it is the developer who contracts with the architect:
He must make sure that the owners are well informed that it is not their architect and, for more precaution, inform them that they can call upon a second consulting architect.
- If the client contracts with the architect:
It is frequent that he reproaches afterwards that this architect was suggested by the promoter. Indeed, since the client is most often looking for a turnkey project, he first contacts different promoters, but not an architect. He does not necessarily know an architect at the time of launching his project, and asks the developer for advice. The owner can then reproach the architect later for lacking independence.
The jurisprudence has already been able to list what can be considered as serious indications of collusion between the architect and the promoter.
It is however more prudent for the developer to recall the contractual freedom of the client in the contract and to budget separately the architect’s fees.
3/ What precautions should the architect take?
In both cases, the architect will make sure that he can demonstrate his complete independence, both by his contract and by the actions taken during his mission.
In addition, in the context of his consulting mission, he will ensure that the promoter strictly respects the Breyne law.
In this way, he will avoid having his responsibility called into question before the courts or before his professional association.
Our advice:
This question is not specific to the Breyne law, but has a particular application there.
Are you unsure about the solution to be implemented? Consult us!
Beyond the contractual aspect, our experience allows us to advise you on the precautions to be taken in your pre-contractual process.
