The Breyne Act: what it requires when a home is paid for before it is finished

The Act of 9 July 1971, known as the Breyne Act, governs the building of dwellings and the sale of dwellings to be built or in the course of construction. It therefore covers three closely related situations: the sale on plan, the sale of a dwelling under construction, and the turnkey building contract.

Two conditions make the difference from an ordinary job. The undertaking covers a dwelling taken as a whole, entrusted to a single company, and the buyer or the client makes payments before completion. It is that advancing of funds on a property which does not yet exist that the legislature set out to regulate.

The extension or considerable alteration of an existing dwelling may also come within it. The FPS Economy puts the condition in figures: the total price of the work must then represent at least 80% of the sale price of the property whose ownership is transferred, and exceed the floor amount the Act fixes.

The most concrete rule fits into one sentence from the FPS Economy: "the advance you pay on conclusion of the contract may not exceed 5% of the total amount of the contract". That cap is statutory, not indicative, and it applies whatever the size of the project.

The balance is paid in instalments, and those instalments "may not be greater than the value of the work already carried out". In other words, the money follows the site instead of preceding it: every call for funds corresponds to something that can be observed on the spot.

The total price, for its part, is fixed in advance and can only be revised under certain conditions. A payment schedule that asks for half the price at signature, or instalments pegged to dates rather than to a state of progress, does not match what the Act provides for: most of its provisions are strictly mandatory, and failure to observe them can lead to the nullity of the contract or of the clause concerned.

Provisional acceptance (réception provisoire) is the act by which the client declares that it accepts the construction, with or without reservations. It records completion, is proved by a writing signed by both parties, and allows the company to claim the balance of the price. It also discharges the company from the apparent defects that were not recorded at that moment.

Two mechanisms are worth knowing before that appointment. A refusal of acceptance must be notified with reasons, by registered letter addressed to the seller or to the contractor. And occupying or using the property counts as tacit acceptance of the provisional acceptance, unless the contrary is proved — as does leaving a written request to fix the acceptance unanswered.

Final acceptance (réception définitive) can only take place after a period of at least one year from the provisional acceptance. It recognises that the work has been properly carried out after that trial period, and it is in principle from then on that ten-year liability runs for defects affecting the stability of the building.

The Act requires the company to provide a financial guarantee intended to protect the future owner if it does not perform its obligations. Its amount does not depend on the job but on the status of the company, and that is the least known point of the regime.

For a recognised company, the guarantee amounts to 5% of the price of the work, held as a surety (cautionnement). For a company that is not recognised, it is 100%: a financial institution or an insurance undertaking stands as joint surety towards the buyer and, if the company can no longer meet its commitments — in a bankruptcy, for example — makes available the funds needed to finish the work.

The two regimes therefore do not cover the same thing. The 5% surety is a partial security; the 100% guarantee is a completion guarantee in the proper sense. Neither of them bears on the quality of the finish or on delays: those questions are matters for the contract, for acceptance and for ten-year liability.

The FPS Economy lists the excluded cases: the future owner who concludes separate contracts with different contractors, trade by trade, the one who has a dwelling renovated that they already owned, contracts concluded with certain public bodies, and the one whose usual business is building or having dwellings built. A classic renovation, entrusted trade by trade, therefore falls outside the regime.

Outside the Breyne Act there is no statutory cap on the deposit, no compulsory completion guarantee and no imposed two-stage acceptance: what the contract provides becomes the only rule. That does not make the job riskier in itself; it simply moves the protection from the text of the Act to the text of the quote.

There remains the check that belongs to the registers: the FPS Economy publishes the list of recognised contractors, searchable by enterprise number, by category and by class. What recognition exactly is, and what it is worth on a private job, is explained in the guide devoted to it; here it serves to tell which of the two guarantee regimes applies. A recognition found in the list remains a dated fact about a capacity examined at a given moment: it does not prove that a guarantee has been put in place for your contract, and it is the guarantee document itself that establishes that.