What does the Building Quality Assurance Act mean for contractors: an update

The Building Quality Assurance Act will take effect on Jan. 1, 2024, after a long delay. The infographic below lists the 5 most important changes from this law.

Deviation from the duty to warn

It follows from the law that the contractor is obligated "when entering into or performing the contract to warn the client of inaccuracies in the order to the extent that he knew or reasonably should have known about them."

In the new situation (when the Wkb comes into force), it will be added that a warning must be unambiguous and in writing. So always state what you are warning about, the possible consequences and the possible damages (time and money). If that cannot yet be properly estimated, state that too (and why).

Examples of deviating from the completion file

The completion file is entirely regulatory law. In other words, the law applies if you don't agree anything else. But the parties are thus completely free to agree on something else. For example, as a contractor you can completely "write off" the completion file (so that you are not obliged to provide a file). You can also further color the completion file so that it is clear which documents are provided - and which are not.

Below are two examples with which the delivery file is written away (example 1) and further colored (example 2).

Delivery file write away

"Notwithstanding (the yet to come into force) Article 7:757a of the Civil Code, the parties agree that the contractor shall not submit a completion file to the client."

Delivery file coloring differently

"Contrary to (the yet to come into force) Article 7:757a of the Civil Code, the parties agree that the contractor shall submit a digital completion file to the principal which shall contain only the following relevant documents and records: [enumeration]."

Example of contractor liability

The biggest change in the Wkb (for the civil part) concerns the contractor's post-delivery liability. Under the current situation, the contractor (i.b.) is discharged for liability after delivery (unless the client could not reasonably discover that defect). Under the Wkb, this is no longer the case.

Two exceptions:

• The defect was discovered by the client (in which case it will either be accepted or labeled as a completion defect. In the latter case, of course, the contractor must fix the delivery defect).
• The defect is not attributable to the contractor (the contractor will have to prove this).

Example

A tour/recording takes place for the completion of a residential house. A door handle is missing from one of the doors - it should have been there. The recording is approved and therefore a handover takes place. There is no mention of a door latch in the acceptance report.

A week after the shoot, the client complains that a door handle is missing.

Situation now
The contractor is discharged for defects. This is different if it is a "hidden defect. However, a missing door handle is easy to spot. It is not a hidden defect. In other words, contractor is not liable and does not have to repair.

Situation when Wkb is in effect
The contractor is liable for all defects unless:

(i) discovered or
(ii) not attributable to contractor.

The burden of proof is on the contractor. The contractor will not be able to prove that the client discovered the defect (it is also not listed on the P-V of completion). Contractor is therefore liable and must repair.

Tips

• P-V of delivery becomes more important;
• Properly record the status of the work. Take photos (preferably 360°) and share them with OG; and
• For contractor: Include in the P-V of acceptance that "OG certifies that no defects have been discovered in..."[specify as many parts of the work as possible]

Waiver of contractor liability

Deviation is possible in the case of a non-consumer. You have to do this in the contract. So not in the general conditions. Below is an example (if the UAV 2012 has been declared applicable).

"Notwithstanding Section 7:758(4) of the Civil Code, the parties agree that the contractor shall not be liable for defects in the work after delivery, subject to the provisions of Section 12 of UAV 2012."

Deviation from statement of collateral

A large proportion of homes are built under the issuance of a certain guarantee/warranty. Think of Woningborg or SWK. Thus the contractor has easily fulfilled the statement of securities available to the client-consumer.

Example of modification of the 5% rule

The statutory regulation now means that the consumer may deposit 5% of the contract sum with the notary until all (delivery) defects have been repaired. Three months after completion, the deposit is automatically released, unless there is timely notice that the client wants to suspend something (i.e. leave it on deposit).

Contractor gets active role in entry into force of Wkb: he must ask consumer if he wants to extend the deposit; between 1 and 2 months after completion. Three-month period remains the same. So contractor do well to include this in their process/turnaround!