Two-volume Building Quality Assurance Act Part 2 - Extended contractor liability

The Building Quality Assurance Act (Wkb) is scheduled to take effect (as scheduled) on Jan. 1, 2021. This new law aims to improve the construction quality of buildings. This is done on the one hand by having private parties carry out quality assurance and on the other hand by expanding the contractor's liability after completion. In the first part of this diptych, my office colleague Juuk Hulshof wrote about quality assurance. This second part discusses contractor liability.

Liability now

Under the current system, the contractor is no longer liable for defects that the client should reasonably have discovered at the time of delivery (Section 7:758(3) of the Civil Code). In short: after delivery, the contractor is only liable for 'hidden defects'. The UAV 2012 (§ 12) has a similar arrangement.

Liability under Wkb

The Wkb is going to change this liability regime. A new paragraph (4) will be added to Section 7:758 of the Dutch Civil Code which provides that the contractor is liable for (all) defects that were not discovered upon delivery of the work, unless these defects are not attributable to the contractor. The starting point becomes that the contractor is also liable for defects that are not hidden. The burden of proof that a defect is not attributable to it is on the contractor.

With respect to the consumer-client, this provision is mandatory law; the contractor cannot deviate from it. In other cases it can be deviated from, but this must be expressly stated in the contract.

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Other new commitments

The main change in the Wkb is the new liability regime. In addition to this, some other changes are being implemented, which amount to the following obligations of the contractor:

1. Providing a completion file to the client prior to completion.
2. If the contractor must warn the principal, it must do so in writing and unambiguously.
3. In the case of building a home for a consumer, the contractor must disclose its financial securities.
4. The contractor must (in the case of deposit of 5% of the contract price in a deposit with the notary) request the consumer in writing during the period between one and two months after completion, whether the consumer wishes to exercise a right of suspension.

Tips for practice regarding liability

1. Delivery file

Have the client sign for receipt of the completion file and also state (on this signed receipt) what the contents of the completion file received are (for example: operation manuals, warranty statements, etc.).

2. Record delivery in a signed P-V.

To avoid ambiguities and dormant liabilities, it is advisable to clearly record all defects in a P-V signed by both parties. It is advisable to also indicate for each defect whether, and if so, when, this defect will be repaired. 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.

3. For a limitation of contractor's liability: explicitly deviate from article 7:758 paragraph 4 BW in the building contract

The contractor could include the following text in the building contract (in the case of a non-consumer as principal): "In deviation from Article 7:758 paragraph 4 of the Civil Code, the parties agree that the contractor will not be liable for defects in the work after delivery, subject to the provisions of § 12 UAV 2012."

Click here for part 1 of the diptych Building Quality Assurance Act - Wkb: permit application made easy