It will not have escaped the perceptive contractor’s notice. On Jan. 1, 2024, the Building Quality Assurance Act (Wkb) went into effect. This law brings a number of important changes for contractors in the areas of liability, duty to warn, disclosure and suspension rights.
For now, the law has a limited scope of application. All of this is briefly discussed below.
Liability
Until now, a contractor was not liable after completion for defects that the client should have noticed at the time of completion and that were only reported afterwards. Under the new law, the contractor remains liable after delivery for all defects attributable to the contractor, even if they were not discovered at the time of delivery.
Alert duty
The contractor has a so-called duty to warn. This means that the contractor must warn the client about errors made by others, such as calculations made by the architect or structural engineer, or faulty materials supplied or to be supplied by third parties. From now on, the warning must be in writing and “unambiguous.” In doing so, the contractor must promptly inform the client of any consequences of these errors for construction.
Quality Assurer
At the time of completion, the contractor must compile a “completion file” that lists all important data related to construction. This includes drawings and calculations of the structure and associated installations, description of materials used and the data needed for operation and maintenance. In compiling this file, the quality assurance officer can play a role. This is an independent person who specializes in reviewing construction for Building Code requirements. This quality assurance officer must be involved in every work and plays an important role in approving the work.
Duty to inform
The contractor is now required to inform the consumer-client of any insurance and other financial security against damages should the contractor fail to properly fulfill its obligations. Such protection for consumer-clients may be particularly important in cases where the Guarantee and Warranty Regulation, widely used in the Netherlands, does not apply.
Suspension
The consumer-client now has the authority to withhold up to 5% of the contract price from the final installment, pending proper completion or repair of completion defects. This amount may now be deposited with a notary on deposit for a period of three months. Thereafter, the notary may pass this amount on to the contractor only after the contractor has informed the principal in writing of his right to hold the deposit longer. This will be the case if the structure is still defective after those three months.
Wkb sometimes not applicable
The new provisions apply only to construction contracts entered into on or after Jan. 1, 2024. Furthermore, the Wkb does not apply to renovations for the time being (until Jan. 1, 2025). Thus, the Wkb applies only to new construction and only insofar as it is new construction that falls under the so-called consequence class 1. These are ground-mounted dwellings and simple commercial buildings, houseboats and other floating dwellings, vacation homes and structures of up to two storeys. For other structures, the Wkb will take effect at a later date.
In conclusion
Please feel free to contact us for further clarification or questions regarding these changes.
