BELGIUM Law and Practice Contributed by: Pieter Puelinckx, Yves Moreau, Melissa Verplancke and Gauthier Callens, Linklaters
Payments schedules are typically structured in instalments based on project phases (mile - stones) such as the final design, provisional delivery and final delivery. Alternatively, invoic - ing may occur on a monthly or quarterly basis, reflecting the actual expenses incurred during said period. 7.2 Assigning Responsibility for the Design and Construction of a Project Architects are usually responsible for the pro - ject’s design, assisting in obtaining building permits, required for construction and (in some instances) demolition of significant structures, and also tasked to oversee the project’s imple - mentation. An engineering consultant might contribute to studies and design. The main con - tractor handles project execution, often hiring subcontractors with no direct contractual rela - tionship with the employer. A safety co-ordinator is sometimes appointed, and in certain cases, legally required, to mitigate the risks of work - place accidents. 7.3 Management of Construction Risk The parties may agree on a two-stage work delivery: provisional and final acceptance. Pro - visional acceptance occurs when works are free of (visible) defects, aside from minor issues (“punch items”) not hindering the property’s use. The employer arranges acceptance visits with the main contractor, possibly with the architect and technical advisors present, to inspect and ensure the works meet the agreed contractual standards. If no or only minor defects are identified, par - ties will approve the provisional acceptance, listing any issues for the contractor to remedy, and draft provisional acceptance minutes. This milestone causes the handover and accept - ance of the property in its visible condition, with
unreported visible defects considered accepted and not claimable later, unless specific war - ranty provisions state otherwise. After provi - sional delivery, the contractor remains liable for defects remediation during the (contractually agreed) defects liability or warranty period(s), as well as for structural defects under the statutory ten-year liability (see below). Defects in relation to technical equipment (HVAC, lifts and other) are often subject to a two-years warranty period (and one year for other defects). Following remediation of minor defects from provisional acceptance and defects identified within the contractually agreed warranty period, the parties will proceed to the final acceptance of the works. Typically, one year, or two years for special techniques, will expire after provisional acceptance to enable the employer to uncover any (hidden) defects and verify the remediation of minor defects/issues before granting final acceptance. The contractor is also liable for hidden defects discovered after final acceptance, subject to a ten-year statute of limitation post-final accept - ance. Claims in that respect must be reported within a “reasonable period” upon discovery, which will be assessed by the courts on a case- by-case basis. This liability can be adjusted (usually limited) by contract. Furthermore, following final acceptance, the employer also remains protected by a specific mandatory ten-year liability provided for in the Civil Code and pursuant to which the architect and stability engineer (and potentially other tech - nical study contractors) are liable for hidden or apparent defects affecting the structural sound - ness of the building. This liability starts from the construction’s acceptance, typically final
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