What does Wkb mean for the roofer?
The realization of a tiled roof, the construction of a roof deck or the application of bitumen on a flat roof constitutes the creation of a material work. This qualifies as the contracting of work and means that the roofer also has to deal with the Quality Assurance Act (Wkb). The Wkb aims to improve the quality of construction works and strengthen the position of the client. But what do the five changes in the title contracting of work in the Civil Code (BW) actually mean for the roofer in the role of (sub)contractor? Using a diagram, three examples and some tips, I will clarify this.
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Effective date and derogation option
The aim is for the Wkb to enter into force on January 1, 2021. The final decision on the date of entry into force will be made in June 2020. When does the roofer have to comply with which obligation and to what extent is it possible to deviate from these obligations? The following is a list.
7:754 (2) BW
The duty to warn is tightened:
- warning of inaccuracies in the order, unsuitability/defects of items originating from the client or errors/defects in the documents provided by the client must be in writing and unambiguously (1);
- timely point out the possible consequences for the proper performance of the contract (2).
From when does the legal regulation apply?
Immediate effect from the entry into force of the Wkb (reference date: January 1, 2021). Thus, both for agreements concluded before and after the entry into force of the Wkb.
Is deviation possible?
No, not to the detriment of the consumer client. It is with a professional client, though.
7:757a BW
The contractor is required to provide a completion file before delivery (upon notification that the work is ready to be delivered), showing that it has fulfilled all its obligations. See also National Practice Guideline 8092 (not required).
From when does the legal regulation apply?
Immediate effect from the entry into force of the Wkb (reference date: January 1, 2021). Thus, both for agreements concluded before and after the entry into force of the Wkb.
Is deviation possible?
Yes. This is regulatory law.
7:758 (4) BW
Under current law, the contractor is released from liability after delivery for defects that the client should reasonably have discovered during delivery. Under the Wkb, the contractor is in principle liable for defects not discovered at the time of delivery, unless they are not imputable to it.
From when does the legal regulation apply?
Only for agreements concluded from the entry into force of the Wkb (reference date: January 1, 2021).
Is deviation possible?
No, not to the detriment of the consumer-client. It does in the case of a professional client (if expressly included in agreement).
7:765a BW
The contractor must inform the client in writing and unambiguously about the coverage of the risks of the contractor's non-performance of the contract (insurance / financial security).
From when does the legal regulation apply?
Only for agreements concluded from the entry into force of the Wkb (reference date: January 1, 2021).
Is deviation possible?
No (this provision applies only to the construction of a home commissioned by an individual). This is mandatory law.
7:768 BW
5% rule (contractor's obligation to provide information on deposit).
From when does the legal regulation apply?
Only for agreements concluded from the entry into force of the Wkb (reference date: January 1, 2021).
Is deviation possible?
No (this provision applies only to the construction of a home commissioned by an individual). This is mandatory law.
How does it work in practice?
Using three examples (assuming that the Wkb will actually come into force on January 1, 2021), I provide more insight into the concrete effect of the Wkb.
Example I
Family Jansen (consumer client) and Roofing Company X entered into a contract to construct a tiled roof in February 2021. During the recording of the work, it turns out that a piece of roof insulation is missing. Client Jansen should have noticed this. There is no mention of this in the completion report. Two months after completion, client Jansen asks Roofing Company X to repair this defect. The Jansen family claims not to have seen this defect. Under the Wkb, Roofing Company X as contractor is in principle liable for all undiscovered defects. This means that the question of whether Jansen should have seen this is no longer relevant under the Wkb. This would have been different if the contracting agreement with Jansen had been concluded before Jan. 1, 2021 (and current law applied).
Example II
Company Gerritsen (professional client) and Roofing Company X entered into a contracting agreement in February 2021. During the recording of the work, everything seems to be in order. No defects are listed in the acceptance report. Two months after completion, Gerritsen reports that part of the roof insulation is missing and asks Roofing Company X to repair the defect. Who is liable? To begin with, it is important to check whether the contracting agreement contains a derogatory clause on liability after completion (after all, it is possible to deviate from the Wkb with a professional client). If this is not the case, Roofing Company X will be liable under the Wkb for all undiscovered defects unless they are not attributable to it. Roofing Company X will have to prove this.
Example III
Suppose company Klaasen enters into a contracting agreement with Roofing Company X on Aug. 1, 2020, to renew the roof of its premises. On March 15, 2021, Klaasen approves the work and the roof is delivered. Does Roofing Company X have a duty to issue a completion file? In this case, the completion takes place after the Wkb comes into force and therefore Dakdekkersbedrijf X has this (broad) legal obligation to issue a completion file, unless the parties have deviated from this in the building contract. In addition to this, a side-step to the tightened warning obligation: after all, this obligation also comes into effect immediately on January 1, 2021 (and thus also applies to contracts concluded before January 1, 2021).
Some important tips for the roofer
- Agree and document in the contracting agreement whether or not you, the roofing contractor, will provide a completion file to the client/main contractor. If so:
- Lay down the content and form (digital/paper) of the completion file in the agreement to avoid discussions about its scope. Connect (from a practical point of view) the completion file with the manner and documents that are already currently provided at the time of delivery.
- Lay the same obligation on the client/main contractor about completing the completion file one-to-one down to the subcontractor, supplier and installer so that they provide the documents in a timely manner.
- start collecting potentially necessary documents for the completion file right now and do not wait until the Jan. 1, 2021, cut-off date.
- Develop a format/checklist that lists the documents to be included in the completion file. This avoids having to reinvent the wheel on every job.
- have the client/main contractor sign for receipt of the completion file and note the contents of the documents (evidential function).
- Design the (internal and external) work processes in such a way and on time that (when the Wkb comes into force) the tightened warning obligation is met.
- Record the completion of the work in a record signed by the client/main contractor with photos/videos ("Ipad completion").
- As a roofer, consider the division of liability after completion before entering into the building contract. By means of a clause in the contract it is possible to deviate from article 7:758 paragraph 4 BW. Note that this is only possible with a professional client.
