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With a tiered notice of default, you prevent unnecessary delays if a (sub)contractor delivers defective work. You first give the counterparty a short period to declare that they intend to rectify the situation, and subsequently a period to actually do so. If they fail to respond or refuse, you can intervene immediately—without having to wait for the entire remediation period to expire. The Supreme Court has found this construction to be valid.
Contractors often engage subcontractors, but these can also cause them problems. Consider chain liability for payroll taxes, and the fact that you, as the main contractor, remain liable for poorly executed work. Strict quality control is therefore important.
The classic notice of default delays
If a subcontractor delivers defective work, you must put them in default: send a written warning and give them a reasonable period to comply correctly. The problem is that repair work often does not proceed quickly, and during that period you must wait to see if the subcontractor carries out the repairs at all. Only then can you take action, for example by having the work done by someone else and recovering the damages. This causes delays, especially if other subcontractors have to wait.
The tiered notice of default as a solution
The tiered notice of default resolves this. The demand consists of two parts: the subcontractor is first given a period to clarify whether he will fulfill his obligations, and subsequently a period to carry out the repair. If he does not respond within the first period, or indicates that he will not comply, you can immediately look for another solution.
The Supreme Court ruled that such a tiered notice of default is valid (ECLI:NL:HR:2019:1581), and the Arnhem-Leeuwarden Court of Appeal confirmed this (ECLI:NL:GHARL:2021:8272). In that case, the main contractor gave the subcontractor five days to declare that he would perform within three weeks.
How do you draft a tiered notice of default?
Do this carefully: clearly describe which work is defective and why, give the other party a reasonable period to assess your comments and let you know that they will rectify the situation, and then a reasonable period to actually carry out the rectification.
Frequently Asked Questions
What is a tiered notice of default?
A notice of default with two deadlines: one to declare that compliance is expected, and one to do so. If no response is received, you can intervene more quickly.
Is a tiered notice of default valid?
Yes. The Supreme Court and the Arnhem-Leeuwarden Court of Appeal have found this construction to be valid, provided it is carefully drafted within reasonable time limits.
Why a tiered notice of default instead of a classic notice of default?
Because with a classic notice of default, you must wait out the full remediation period. With the tiered variant, you can immediately switch to another solution in the event of no response.
Have a tiered notice of default drafted
The legal experts at MKB Juristen constantly draft notices of default, including in a stepped form. View our expertise in contract law or schedule an intake meeting .
