The Breyne Law financial guarantee (Act of 9 July 1971) is probably the legal tool most poorly used by Belgian owners. Yet it is the one that genuinely rebalances the power relationship between client and contractor. Across the 612 provisional receptions I have supported over five years, I still see one owner in four release this retention too early — under friendly pressure, through unfamiliarity with the mechanism, or simply through excessive trust. Here is precisely how this 5% retention works, when you can and should release it, and the fatal mistake that on average costs my clients 8,400 € when they make it.
The mechanism: 5% withheld until final reception
The Breyne Law requires the contractor to provide a completion guarantee (often a bank guarantee or a security from an accredited body) covering the entire sale price. This is the guarantee that you, the buyer, will not lose your down payment if the contractor goes bankrupt during construction.
In exchange for this completion guarantee, the client may retain 5% of the price until the final reception, which takes place one year after the provisional reception. These 5% are:
- Either paid into a blocked account at the notary (most protective set-up)
- Or kept directly by the buyer on the final payment (simplest set-up)
- Or guaranteed by an equivalent security from the contractor (option to avoid)
For the full text of the Breyne Law, see ejustice.just.fgov.be — Act of 9 July 1971.
Why 5% and why 12 months
The percentage of 5% of the total price is the legal minimum — you may negotiate higher in the contract, but not lower. On a 320,000 € house, that represents 16,000 €: an amount sufficient to cover virtually all defects identifiable within the year following reception.
The 12-month period between provisional and final reception corresponds to a full climate cycle (winter-summer), the only one able to reveal seasonal defects: water tightness (autumn-winter), thermal bridges (winter), overheating (summer), ground settlement (spring).
Release: three concrete scenarios
Scenario A: provisional without reservations, final without new reservation
The ideal case, but rare (I have 47 cases out of 612, i.e. 7.7%). Automatic release at the final reception, i.e. 12 months after the provisional. Just check that the final reception PV is signed by both parties.
Scenario B: provisional with reservations, lifted within 12 months
The most frequent case (489 cases out of 612, i.e. 80%). Release at the final reception, as soon as all reservations are lifted via a signed PV. Each reservation must have its own individual lifting PV signed contradictorily.
Scenario C: reservations not lifted at the final reception
The conflict scenario (76 cases out of 612, i.e. 12%). Retention maintained until contradictory expertise or court decision. It is in this scenario that the retention takes on its full strategic value — the contractor is keen to recover the money and often accepts a final negotiation.
The fatal mistake: releasing too early
I see one owner in four release the retention before the final reception, under friendly pressure from the contractor (“we’re all adults, right?”, “it’ll save us the notarial procedure”). It is the most costly mistake of the whole construction file: once released, the retention can no longer be called upon when a defect is discovered.
The only remaining route is then a court action, long and uncertain: 6,000 to 12,000 € of costs in first instance, 18 months of proceedings, variable success rate depending on the strength of the evidence file. The average cost for my clients who released the retention too early and had to take legal action: 8,400 € net loss.
How to resist pressure
When the contractor insists on recovering the retention before the final reception, here are the arguments to use:
- “The Breyne Law explicitly provides for this retention until the final reception”
- “My notary / my expert has advised against any early release”
- “You have the completion guarantee, I have the retention: it is balanced”
- “Out of 612 cases my expert has seen, one in four has regretted the early release”
These formulations usually defuse pressure without breaking the relationship. And if the contractor insists heavily despite everything, that in itself is a bad signal about his solvency or his confidence in his own work.
Pitfalls to avoid
- Do not sign the provisional reception PV with a mention “valid as agreement for early release”
- Beware of notaries who suggest early release without audit
- Verify the exact mention of the 5% in your authentic deed
- Keep the final reception PV in your owner’s file for 10 years
- If you discover a defect after the final reception, activate the two-year warranty or ten-year liability depending on its nature
What to do next?
If your final reception is approaching and you have doubts about the lifting of certain reservations, have your file validated by an independent expert before signing. My firm offers Breyne Law support covering coordination of the final reception and securing the retention. For a one-off opinion, request a free quote.