Under Dutch law, the contractor is liable for defects in the work it delivers, and since 1 January 2024 also for defects that were not discovered at delivery, unless it proves the defect cannot be attributed to it. The main exception: a client who supplied a faulty design, calculation or material bears that risk itself, provided the contractor warned in writing about errors it knew or should have known.
The rules are in Title 12 of Book 7 of the Dutch Civil Code (Burgerlijk Wetboek, BW) on construction contracts (aanneming van werk). Many contracts also adopt standard conditions such as the UAV 2012, which set their own procedures and periods.
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What counts as a construction defect?
A defect is any shortcoming in design, materials or workmanship that means the work does not meet what the client could reasonably expect under the contract. The test is the contract, the drawings and the Building Decree (Besluit bouwwerken leefomgeving) that applies to the work.
In practice, defects fall into four groups: design errors by the architect or engineer, poor materials, poor workmanship and problems with the subsoil. Typical signs are cracks in foundations or walls, damp and mould, doors and windows that stick because of uneven settling, and electrical faults. A building survey (bouwtechnische keuring) or an independent expert report is usually needed to establish the cause.
Who is liable for a construction defect?
The party that caused the defect is liable towards its own contracting party. The client claims against the main contractor under the construction contract; the main contractor in turn claims against its subcontractors and suppliers.
The contractor
Under Article 7:758(4) BW, introduced by the Quality Assurance for Building Act (Wet kwaliteitsborging voor het bouwen, Wkb), the contractor is liable for defects that were not discovered at delivery. It no longer helps the contractor to argue that the client should have noticed the defect at delivery. The rule applies to construction contracts concluded on or after 1 January 2024; older contracts fall under the previous rule, which excluded defects the client reasonably should have discovered.
A private client (a consumer) cannot agree to a less favourable arrangement. A professional client can, but only by an explicit clause in the contract itself; general conditions such as the UAV 2012 are not enough for that.
The client and the duty to warn
If the defect results from the client’s own design, calculations or prescribed materials, the client generally bears the risk. Under Article 7:754 BW, however, the contractor must warn the client about errors in the assignment that it knew or should reasonably have known. Since 2024 that warning must be given in writing, unambiguously and in time, including the possible consequences. A contractor that fails to warn can still be liable.
Architects, engineers and suppliers
An architect or structural engineer is liable for design errors under its own contract with the client, often under the DNR standard conditions for architects and engineers. Suppliers are liable to the party that bought the materials. Where several parties contributed to the same damage, liability is often shared, and the court divides it according to each party’s contribution.
The seller of an existing building
If you bought an existing property, your claim is against the seller under the rules on conformity (Article 7:17 BW), not against the original builder. The seller is liable for defects it knew of and did not disclose, but the purchase agreement often limits liability for hidden defects. See our page on resolving real estate disputes for that route.
What should you check as a client?
- Is the construction contract concluded on or after 1 January 2024, so that Article 7:758(4) BW applies?
- Did you record every visible defect in the delivery report (proces-verbaal van oplevering)?
- Did you receive the completion file (dossier) with drawings, calculations and maintenance information under Article 7:757a BW?
- Have you notified the contractor in writing, soon after discovering the defect, with photos and dates?
- As a private client: did you use your right to deposit up to 5% of the contract price with a notary (Article 7:768 BW)?
- Does your contract contain an explicit clause limiting the contractor’s liability?
What should you check as a contractor?
- Did you warn the client in writing and unambiguously about errors in the design or prescribed materials (Article 7:754 BW)?
- Is the delivery report signed and complete, so you can show what was found at delivery?
- Did you hand over the completion file with the notice of delivery?
- Can you prove that a defect is not attributable to you, for example through inspection reports and photos?
- Have you notified your own subcontractors and suppliers in time, so you can pass on the claim?
How do you claim for a construction defect?
You document the defect, notify the responsible party in writing and give it a reasonable period to repair. Only then can you claim damages or other remedies in court or arbitration.
Document and give notice
Take dated photos and videos, keep a log of when each defect appeared and keep the contract, drawings, delivery report and all correspondence. Then send a written notice of default (ingebrekestelling) by registered post or e-mail with proof of receipt, listing each defect and setting a reasonable period for repair, often two to four weeks. The notice also counts as the protest the law requires: you must complain within a reasonable time after discovering the defect.
Which remedies are available?
The contractor first has the right to repair the defect. If it fails to do so within the period set, you can claim damages for repair by another party, additional costs such as temporary housing, and in serious cases partial or full termination of the contract (Article 6:265 BW). A private client can also suspend payment of the deposited 5% until the defects are resolved.
Court, arbitration or mediation?
Many construction contracts refer disputes to the Raad van Arbitrage voor de Bouw, the construction arbitration board. Without such a clause, claims up to €25,000 go to the subdistrict court (kantonrechter) and larger claims to the district court, such as the District Court of Oost-Brabant in Eindhoven. Mediation is possible at any stage if both parties agree.
Which deadlines apply?
A claim for a defect in delivered work becomes time-barred two years after you protested to the contractor (Article 7:761 BW). If you gave the contractor a period to repair, that two-year period starts only when the repair period ends.
For buildings there is also an outer limit of twenty years after delivery. Standard conditions such as the UAV 2012 contain their own, shorter periods for hidden defects, so check the conditions in your contract before relying on the statutory periods.
How do you prevent construction defects?
Most disputes start with an unclear contract or an incomplete delivery. Check that the contractor is registered with the Chamber of Commerce (KvK), and set out quality standards, materials, planning and warranties in the contract.
Under the Wkb, a quality assurance provider (kwaliteitsborger) checks during construction that consequence class 1 works meet the building regulations. Independent inspections at key stages, a careful delivery and a Construction All Risks (CAR) insurance policy during the works reduce the risk further.
What can we do for you with construction defects?
Our construction lawyers assist clients, developers and contractors in defect disputes.
- We review your construction contract, the standard conditions and the delivery report.
- We assess whether Article 7:758(4) BW applies and who bears the defect.
- We draft the notice of default and the protest, with a clear repair period.
- We arrange an independent expert to establish the cause of the defect.
- We conduct proceedings before the subdistrict court, the district court or the Raad van Arbitrage voor de Bouw.
Summary
- The contractor is liable for defects in delivered work and, for contracts from 1 January 2024, also for defects not discovered at delivery (Article 7:758(4) BW).
- A contractor that did not warn in writing about errors in the client’s design can still be liable (Article 7:754 BW).
- Protest in writing within a reasonable time; the claim becomes time-barred two years after that protest (Article 7:761 BW).
- Standard conditions such as the UAV 2012 may set other periods; check your contract.
Frequently asked questions
Is a contractor liable for defects found after delivery?
Yes, for construction contracts concluded on or after 1 January 2024. Under Article 7:758(4) BW the contractor is liable for defects not discovered at delivery, unless it proves the defect is not attributable to it.
Can a contractor exclude this liability?
Not towards a private client. A professional client can agree to a limitation, but only by an explicit clause in the contract itself, not through general conditions such as the UAV 2012.
How long do I have to claim?
You must protest within a reasonable time after discovering the defect. The claim then becomes time-barred two years after the protest (Article 7:761 BW), and for buildings an outer limit of twenty years after delivery applies.
Can I withhold part of the price?
A private client building a home may deposit up to 5% of the contract price with a notary under Article 7:768 BW, as security for defects found at delivery.
