6 amendments to the general terms and conditions
I. Amendments at the initiative of business owner (Article 6)
Article 6: The business owner may make changes to the building plan if it is found necessary during construction, provided that these changes do not impair the value, quality, appearance, appearance or usability of the home.
Change
The business owner must give notice of the changes in writing (within a reasonable period but) no later than 14 days before delivery. Under the old regulation, the only requirement was that the changes must be given notice within a reasonable period.
Practice
In practice, changing a building plan during execution is not often allowed because modifications quickly lead to a reduction in value, quality, appearance or browning. In any case, it is important to agree in writing with the Acquirer on a change to be made.
II. Modifications by order of the Acquirer (Article 7)
Article 7: The Acquirer may request business owner to build in deviation from the technical description or the drawing.
Change
The Acquirer is expressly prohibited from carrying out (or having carried out) any work himself prior to delivery of the dwelling. This is only possible with the permission of business owner.
Practice
This provision gives the business owner hold over the Acquirer. If third parties are performing work in the home on behalf of the Acquirer prior to completion, in the event of damage in the home, business owner runs the risk of ambiguity as to who caused the damage.
In practice, the business owner as main contractor is often called to account for this while it is not always justified. It is therefore important to make a well-considered choice whether or not to grant third parties access to the home prior to completion. If the business owner chooses to do this, then it is important to make proper arrangements with Acquirer and the third party under what conditions the construction site may be entered.
If possible, also create a baseline measurement that you have the third party and the Acquirer sign so that it is clear what the status of the property is prior to the third party's work.
III. Working days and delivery (Article 14)
Article 14: The parties will agree on a number of workable working days within which the home will be delivered.
Change
The business owner may count with half (unworkable) working days (see also Part 1 of this triptych). If the business owner exceeds the agreed number of workable working days or delays an already announced delivery date, the business owner shall owe liquidated damages of one-quarter per mille (0.25‰) of the contract price per calendar day.
The General Conditions now also explicitly include that the Acquirer cannot claim this compensation if the delay is attributable to the Acquirer himself. Until now, business owner could also defend itself by pointing to the "own fault" of the Acquirer, but this defense is now explicitly laid down in the General Conditions. Incidentally, it is up to business owner to prove that the exceeding of the workable working days or the postponement of the already announced delivery date is culpable to the Acquirer.
IV. Right of suspension (Article 15)
Article 15: The Acquirer may withhold (without invoking the power of suspension in the law) a maximum of 5% from the last instalment of the contract price. This amount must be deposited in a deposit with the notary.
Change
With the enactment of the Quality Assurance Act on Jan. 1, 2024, business owner acquires an active role in the 5% rule. The business owner must:
- Between the 1st and 2nd month after completion, actively ask the Acquirer if they want to extend the 5% deposit; and
- send a copy of the notice to the Acquirer to the notary.
The notary may not transfer the deposit amount if he 1) has not received a copy from the contractor or if he 2) has received notice from the Acquirer that he wishes to extend the deposit.
Furthermore, in addition to providing security or a bank guarantee, the Acquirer may also provide "security equivalent to the deposit". This may be a valuable addition for practitioners as we increasingly see consumers struggling to obtain financing and the strict rules and conditions attached to it.
Standard Letter
Note: Provide a standard letter with information about the 5% rule that is sent by default within 1 to 2 months of completion. Explain in "Jip and Janneke language" exactly what the 5% rule means:
- up to three months after completion, the Acquirer may retain 5% of the contract price without giving reasons (on deposit with the notary);
- after three months, the Acquirer must weigh up whether the amount withheld (5% of the contract price) is in reasonable proportion to the outstanding complaint points. If this is not (no longer) the case, the Acquirer should release part of the amount to business owner so that only a proportionate amount is withheld considering the remaining complaints;
- if the Acquirer wrongfully withholds and higher than reasonable amount for the outstanding complaint points (e.g. an amount of € 10,000.00 for a complaint point about a scratch on the window) then the Acquirer is liable for damages to the business owner (legal interest currently 7%).
Practice
In practice, we often see Acquirers mistakenly withholding large sums of money for minor items. With a good explanation letter to the Acquirer, this can possibly be prevented. Use the letter as a positive contact moment with the Acquirer to gauge whether there are any completion issues that still need to be resolved and to strengthen the relationship with the Acquirer.
V. Maintenance period with warranty and liability of business owner (Article 18)
Article 18: For contracts concluded before the entry into force of the WKB on January 1, 2024, the business owner will no longer be liable for defects that were not discovered when the house was delivered (or hidden defects).
Change
For contracts concluded from Jan. 1, 2024, the (new) section 7:758(4) of the Civil Code applies. The basic principle is that the contractor is also liable for non-concealed defects. The burden of proof that a defect is not attributable to it lies with the contractor.
Practice
To avoid ambiguities and latent liabilities, it is advisable to clearly record all complaints in a P-V signed by both parties. In doing so, it is recommended to also indicate for each complaint whether, and if so, when, this defect will be remedied. In order to avoid discussions about the location, nature or extent of (a) defect(s) described in the P-V, film and/or photo material can be helpful.
VI. Dissolution of the purchase/contract (Article 22)
Article 22: If one of the parties (after summons) fails to cooperate in the delivery of the plot, that party shall owe a contractual penalty of 10% of the purchase and contract price.
Change
The 10% penalty is still calculated only on the purchase price (not the contract price).
The Quality Assurance Act (Wkb).
As of Jan. 1, 2024, the Building Quality Assurance Act came into effect. Changes follow from this Act that apply to all building contracts signed between a contractor and a private client from January 1, 2024. The model agreements of Woningborg have been adapted to the Wkb in terms of terminology and the general terms and conditions also contain a number of changes of a more fundamental nature.
Tips for practice
Make sure that the changes are known within your organization and set up your organization accordingly so that there are no unexpected surprises. For example, make sure that:
- Within 1 to 2 months after completion the standard letter regarding the 5% scheme is sent to the Acquirer. We will be happy to assist you in drafting an easy-to-read letter clearly explaining the scheme;
- An assessment of whether a third party (or the Acquirer itself) obtains access to the construction site prior to delivery to perform certain work will be made on a situation-by-situation basis. The business owner is not obliged to provide access to these parties. There may be good reasons to deny (or allow) access. If access is granted, make proper arrangements and document them;
- Sufficient time is scheduled for the completion of a home. The change in contractor liability makes completion a more important time for the contractor. It is important to properly record the status of the home to avoid discussions afterwards. Under the new regime, it is the contractor who must prove that the complaint was not there at the time of delivery (no hidden defect).
