Document performed recovery well

In our practice, we frequently see that contractors do not document properly (enough) the repairs they perform. For example, it is not always recorded in writing what is being repaired, in what way, at what location or when. Photos of the situation before and after repair are also often not available. When discussions later arise about the repairs carried out, it frequently turns out that the contractor's file on the matter is incomplete. This worsens the legal position of contractors.

New liability terms after recovery

After completion of the remedial work, new liability periods begin to run for the contractor. If the contractor was liable on the basis of a hidden defect for five years and made repairs before that period expired, then the said period starts running again for the repaired parts. A warranty period can also start running again after repair, depending on what is stipulated about it in the warranty regulations. If there are multiple complaints from a client whose repairs were delivered on different dates, this quickly leads to a complex timeline with differing liability and warranty periods for different parts of the home. To map that out, a proper record is necessary.

In the event that you want to prove in such a situation that liability periods have expired, you will have to clarify, for example, when the relevant period started and thus when repairs were made. You will then also have to explain which complaints are new and which are related to a previously reported defect, should this not be obvious. Finally, for a proper defense, it is also important to have insight into the technical manner in which previous repairs were made.

In practice, there are numerous examples where a contractor has benefited from his record. For example, there was litigation over leakage complaints in an apartment complex where the contractor had previously performed repair work on the facade cladding. Three years after the last repair, the VvE again complained about leaks. The contractor was then able to demonstrate with his records exactly how he had previously repaired and that the later leaks had a different cause. As a result, the CoE's complaint was too late and the contractor was not liable.

Recommendation: create a (digital) recovery report

We recommend that you document repair work as accurately as possible, preferably in a standardized report. That report should include at least the following information: the date of completion of the repair work, the exact location, and a brief description of what was done. Preferably supplemented with some clear photos or films of the situation before and after repair. If necessary, have the client sign for approval and send him a copy of the report. Also impose the obligation to prepare such a report contractually on your regular subcontractors.

Incidentally, after the introduction of the Building Quality Assurance Act (Wkb), the contractor will be liable for all defects not discovered at the time of delivery. This means that the contractor will then have to prove that a defect is not attributable to him by recording the state of the work and any defects as clearly as possible at the time of delivery with, for example, photographs and films. There are several applications available on the market that can be used for this purpose. Possibly these applications could also be used for the structured recording of the follow-up process in which any defects are remedied.

Reduce liability risks and failure costs

A complete "recovery file" is an important part of managing the liability risks you may face in the aftermath of a project. In addition, especially when you digitize and access the data, it gives you insight into the total number of complaints and the status of their recovery. This gives your own quality assurance a positive boost and this can lead to a reduction in failure costs.