In practice, many litigations take place over discussions about the quality of roofs. During these proceedings, the question often arises as to whether the roof has been properly maintained. This question is legally relevant because a roofer may not be liable if it turns out that the roof has not been maintained or has been poorly maintained. Providing maintenance instructions to the client in advance facilitates such a defense.
Obligation of contractor and client
The roof is one of the most important parts of a building. It goes without saying that upon completion of a building, a realized roof must meet the function for which it is intended (to protect against external influences). In practice, this means that a roof must at least meet the requirements of good and sound work, the requirements of the Building Code and any other requirements that follow from the relevant laws and regulations.
Upon completion of a building (and the possible expiration of a maintenance period), the building becomes the responsibility of the client. That is, the roofer is no longer responsible for building defects (barring hidden defects, serious defects and/or warranty defects). An owner of a building may be expected to maintain the building properly thereafter where the term "good housekeeping" is often used. The question of what constitutes good maintenance is very important in this context.
Guarantees
On top of that, contracts often include additional agreements on the building's roof, for example in the form of guarantees. This is in any case the case when building houses under the guarantee and warranty schemes of Woningborg, SWK and Bouwgarant. Under these schemes, the general contractor guarantees that the roof will be free of defects for six years; this guarantee is then usually required by the general contractor from the roofer as well. Should any defects occur within those six years, the roofer must fix those defects at his own expense. Warranty is also often required in contracts with professional clients.
The various warranty schemes usually include an exclusion for defects and damage resulting from the roof not being maintained or not being maintained properly. Specifically, this means that the client then cannot invoke the issued warranty if he has not, not sufficiently or improperly maintained his roof from the time of delivery. Again, this makes it important to know what constitutes proper maintenance.
Good maintenance
Different types of maintenance are distinguished. This article discusses the most common maintenance categories namely preventive and corrective maintenance.
Preventive maintenance refers to performing maintenance regularly and on a planned basis. The goal is to get ahead of the occurrence of complaints. In any case, an owner should maintain his roof preventively. The best-known example of this is undoubtedly cleaning and keeping the gutters clear to ensure that rainwater drains properly. With insufficient preventive maintenance, various problems can arise such as fouling, detachment of materials at connections, cracking or leaks.
Less well known is that an owner is also responsible for necessary corrective maintenance. The premise here is that the owner makes repairs immediately after encountering minor imperfections on the roof to prevent further negative consequences. Examples include sealing open seams in the roofing, repairing a cracked sealant joint and repairing small cracks in the roofing material. Of course, how far an owner should go in this regard depends on the type of roof, the agreements with the contractor and the professionalism of the client/owner.
Inadequate maintenance
It regularly happens in practice that the lack of maintenance or insufficient maintenance of a roof is a major cause of, for example, a leak that has occurred. The client then argues that the roof was bad from the outset, while the roofer believes that the client has largely caused or exacerbated the problem himself by not maintaining the roof or maintaining it inadequately. Judges and arbitrators often distinguish between consumers and professional clients in these discussions. Less can be expected from a consumer than from a professional client who is knowledgeable and/or supported by consultants.
The roofing contractor's legal position is strengthened in such a case if he can show that the client has been specifically advised on how the roof should be maintained, how often, etc. A good guideline here can be a maintenance instruction provided by the roofer. It is advisable to tailor this maintenance instruction because maintenance may vary by type of roof, location of the property, etc. Include in it how frequent maintenance work should be done and require that photos be taken in the process. In addition, it is wise to list the minor repairs that the client is expected to perform himself.
Conclusion
Case law often raises the question of whether the roof has been properly maintained in the context of the roofing contractor's liability. To strengthen the roofing contractor's legal position, it is important to explain to the client in advance how the completed roof should be maintained. To prove this, providing maintenance instructions is advisable where we recommend having the client sign for receipt.
