What is the case about?
This is a sedum roof of about 70 square meters. More than one year after completion, the contractor visited the client to inspect the sedum roof. This was prompted by bare spots in the sedum and a significant difference in growth and flowering between the north and south sides of the sedum roof.
The contractor indicates that it appears that the sedum is lacking water or nutrients. As a possible solution to this, the contractor suggests spreading sedum shoots (which are cuttings from sedum plants), combined with additional substrate, and connecting a sprinkler hose to the roof. The client responds to this proposal with several critical comments, and ultimately the parties do not reach an agreement on how to solve the problems with the sedum roof.
What does the (party) expert say?
Clients then have an expert examine the sedum roof. The expert comes to the conclusion that several comments can be made regarding the technology of the applied roof vegetation system. The water management is not in order due to the use of a protective cover with little water buffering, an insufficient substrate layer and a less suitable vegetation mat. As a result, water is poorly absorbed and remains mainly on the surface of the system. Also, the vegetation cannot root deeply, resulting in a high vulnerability for the vegetation during drying/dry weather.
The expert concludes that rigorous and drastic measures are needed to improve the situation. The entire system must be replaced. The contractor does not proceed with complete replacement and the principals initiate proceedings.
What does the judge say?
In court, the contractor is proven wrong. He must pay all repair, investigation and litigation costs. He disagrees with the ruling and appeals (to the court).
Complaint duty
The law requires a party to "timely complain. Contractor believes this was not done in a timely manner by client. Contractor argues that clients would have first complained about 1.5 years after completion. However, the court ruled that complaints were made earlier, because the contractor reviewed the sedum roof approximately one year after completion and discussed possible solutions. This shows that the clients complained earlier and thus in a timely manner. The court adds that the contractor also did not suffer any disadvantage from the so-called 'late' complaining.
Completion
The contractor then argues that no completion inspection took place, which allowed it to assume that the sedum roof had been accepted. By doing so, the contractor believes it has been released from liability.
The court disagrees. If there had been a tacit acceptance (acceptance), the discharge of liability only covers defects that clients should reasonably have discovered at the time of delivery. This was not the case here.
Own fault?
Finally, the contractor claims that the problem being complained about is the result of clients not wetting the sedum roof enough after completion. As a result, the roof increasingly dried out and the planting did not develop properly, or at least recover.
In this regard, the contractor states that it has pointed out to clients the importance of humidification and the installation of a humidification system. For this, the contractor refers to the quotation/order confirmation containing a reference to the contractor's website. The importance of humidification was also said to have been emphasized during consultations.
Again, the court disagrees. In the first place, it does not follow from the expert report that the origin of the problem was the insufficient wetting of the planting. Second, there is no evidence that the contractor would have advised installing a humidification system on the sedum roof.
What can we learn from this statement?
Substantiate damages
This case shows that, to the extent that a contractor believes that a complaint was filed late, it is very important to substantiate the interests in which a contractor was harmed. This must be substantiated in such a way that it justifies forfeiting the clients' rights. Such a justification exists if, for example, you can prove on the basis of calculations that the repair costs have become much higher due to the (late) complaining by clients.
Exclude defects by contract
Furthermore, it is advisable to point out certain risks and maintenance requirements to clients 'at the front' in concrete terms and in writing. You can also simply agree that no claim can be made for any defect if those maintenance requirements are not followed.
Provide maintenance instructions
Also make sure you can prove that those prescriptions were handed over. A simple email with attachment is often sufficient. This was lacking in the present case. If a dispute arises, you can fall back on this.
