Liabilities for defective construction

Liabilities for defective construction

The contractor's main obligations are included in the construction contract. For example, agreements regarding the completion of the construction work are stipulated in the construction contract. The law specifies which party is liable in a particular situation. If the contractor fails to fulfill their obligation, the contractor must compensate the client for the damage suffered as a result of this failure. This concerns an attributable fault on the part of the contractor. The contractor is not liable for errors made by other parties involved in the construction work. Consider, for example, an architect who submits an incorrect design. In many cases, the contractor remains liable for the defect for up to two years after completion. In principle, this period begins to run from the moment of completion. However, the statute of limitations for a contractor's liability for hidden and serious defects is longer. If there is a defect in a construction work, it is advisable to seek legal advice immediately.

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Who is liable for defective construction?

In the event of a defect in a construction project, the contractor is not automatically the sole liable party. In practice, multiple parties involved may be held liable: the main contractor for execution errors, a subcontractor or installer for the work performed by them, the architect or structural engineer for a defective design, and a consultant for incorrect calculations or advice. In principle, the contractor is not liable for errors committed by another party, for example, when an architect delivers a faulty design. However, the contractor does have their own duty to warn: pursuant to Article 7:754 of the Dutch Civil Code (BW), they must warn the client of inaccuracies in the contract or in data provided by the client, insofar as they were known or ought reasonably to have been known. If the contractor fails to fulfill this duty, they may still be held (partially) liable. Determining exactly who is accountable requires a careful factual and legal analysis. Our lawyers and in-house counsel map out these relationships and determine the appropriate party to hold liable.

Legal grounds for liability

Liability for defective construction can rest on various grounds. The most common is the attributable failure (breach of contract) under Article 6:74 of the Dutch Civil Code: if the contractor is in attributable default in the performance of the construction contract, he must compensate the damage suffered by the client as a result. In addition, a party involved may be liable in tort pursuant to Article 6:162 of the Dutch Civil Code, for example when no contractual relationship exists, such as between a subsequent buyer and a subcontractor. Furthermore, the special provisions of Book 7, Title 12 of the Dutch Civil Code (Articles 7:750 et seq.) apply to the construction contract. Which basis is strongest depends on the agreement, the contractual conditions (such as the UAV 2012 or the UAV-GC), and the facts. We assess which route offers the best chance of success.

Liability after delivery and hidden defects

The moment of delivery is legally decisive. Pursuant to Article 7:758 of the Dutch Civil Code, the work is deemed delivered upon acceptance, and the contractor is, in principle, released from liability for defects that the client should reasonably have discovered at that time. The situation is different for hidden defects : the client could not have discovered these upon delivery, so the contractor remains liable for them. If the client discovers a defect after delivery for which the contractor is liable, he must, pursuant to Article 7:759 of the Dutch Civil Code, in principle first give the contractor the opportunity to remedy the defect within a reasonable period. Furthermore, a contractor cannot exclude his liability for defects that he knew or ought to have known and concealed (Article 7:762 of the Dutch Civil Code). Promptly and demonstrably protesting to the contractor is essential to safeguard your rights.

Quality Assurance in Construction Act (Wkb)

Since January 1, 2024, the Quality Assurance in Construction Act (Wkb) has been in force. Consequently, Article 7:758 of the Dutch Civil Code has been tightened: the contractor is henceforth liable for defects that were not discovered upon completion, unless those defects are not attributable to him. The old, subjective criterion (“should the client reasonably have discovered it”) gives way to a more objective starting point, whereby the burden of proof lies with the contractor. This rule is mandatory law for consumers and can only be deviated from by professional clients by express and unambiguous agreement; a mere reference to general terms and conditions is insufficient. This fundamentally changes the liability position of both contractors and clients. For the local contractor as well as the large construction company, it pays to align contracts and completion files with this.

Statute of limitations and time limits

Claims due to defective construction are subject to a statute of limitations. Pursuant to Article 7:761 of the Dutch Civil Code, a short limitation period of two years applies after the client has protested the defect to the contractor. In addition, a longer period applies that causes the right to lapse in any case: twenty years for defects in buildings and other structures, and ten years for other works, calculated from completion. In the case of a hidden defect, the short period only begins to run after discovery and protest. Because time limits can expire unnoticed and the statute of limitations sometimes needs to be interrupted in a timely manner, it is advisable to seek legal advice immediately in the event of a defect. We monitor time limits and secure actions to interrupt them where necessary.

Procedure: from liability to arbitration

In a dispute concerning defective construction, the process usually begins with a substantiated claim for liability and, where required, a notice of default placing the contractor in breach. Proper documentation and evidence are crucial: a handover report, photographs, expert reports, and correspondence. If rectification or an amicable settlement is unsuccessful, the dispute may be submitted to the court. However, in the construction industry, arbitration is often agreed upon, for example at the Council of Arbitration in Construction Disputes, with arbitrators possessing technical knowledge of the construction sector. We guide you through this entire process, from the initial formal notice to proceedings or arbitration, with a mixed team of lawyers and in-house counsel.

Construction law: more expertise from MKB Juristen

Liability for defective construction is part of our broader legal field of Construction Law. Defects are often linked to other construction law topics. Therefore, please also view our pages on purchase and construction contracts, on additional and reduced work , and on the right of retention. If you have a broader dispute, our page on construction law issues further assistance. Whether you are an international corporation or the baker on the corner: we offer tailored legal assistance.