When is work legally defective?
Work is defective when the result does not match what was agreed or what you were entitled to expect. The contractor must also warn you about errors in your instructions or in the materials.
Is the defect serious enough to end the contract?
Not every imperfection carries the same consequences. The distinction is not cosmetic against structural; it is whether the shortcoming is significant enough to justify the remedy you want to use.- Minor shortcomings: paint runs, a misaligned tile, a poorly finished edge. These give a right to repair, and to a proportionate reduction of the price if repair is not carried out, but not to dissolution of the whole contract.
- Serious shortcomings: a roof that leaks, electrical work that does not meet the applicable standards, a floor that does not carry, a construction that does not comply with the building rules. These can justify dissolution, replacement of the contractor and a claim for consequential loss.
Who is liable when several parties were involved?
In most cases the main contractor, because it is liable for its subcontractors and suppliers as for itself.Larger projects involve an architect, a structural engineer, subcontractors and suppliers, and the instinct to pursue whoever caused the problem is usually wrong. Your contract is with the main contractor, and under Article 6:76 of the Dutch Civil Code a party that uses others to perform its obligations is liable for their conduct as for its own. The contractor cannot therefore point at its subcontractor or at the supplier of a faulty material; that is a matter between them.The exception is where you contracted separately with the designer or with a supplier. A designer owes a professional duty of care, and a design fault is a different claim with its own limitation period. Where a defective product caused physical damage, the manufacturer may be liable in its own right. Identify at the outset who your contract is with, because that decides who you write to and who you sue.Why does delivery matter so much?
At delivery (oplevering) the risk passes to you, and visible defects that you did not note are, in principle, accepted. Inspect carefully and record every defect in writing.
What does the Wkb cover, and what not?
The public-law half of the Wkb has applied since 1 January 2024 to new building work in consequence class 1, the lowest risk category, which covers matters such as detached houses and small commercial buildings. For those projects an independent quality assurer (kwaliteitsborger) checks the work during construction instead of the municipality assessing the plans in advance, and a completion notification has to be filed with the municipality before the building may be used. Its extension to renovation work has been postponed and has no fixed date. The private-law changes described above, however, apply to contracts for work generally, not only to projects that fall under the new supervision system.How quickly must you complain, and when does your claim expire?
Complain in writing within a reasonable time after you discover the defect. Your claim then expires two years after that complaint, and in any event twenty years after delivery of a building.There is a persistent myth that Dutch law gives a five-year guarantee against hidden defects. It does not, and relying on that idea is how good claims are lost.Two rules govern timing. The first is the duty to complain. Article 6:89 of the Dutch Civil Code requires you to protest within a reasonable time after you discovered the defect, or reasonably should have discovered it. What is reasonable depends on the circumstances, but the safe course is simple: write to the contractor as soon as you notice something, describe what you have seen, and date it. A client who waits, hoping the problem will settle, risks losing the right to complain at all.The second is limitation. Under article 7:761 of the Dutch Civil Code a claim in respect of a defect in delivered work becomes time-barred two years after you protested about it. That is a short period, and it runs from your own letter. Interrupt it in writing before it expires, or start proceedings.There are also outer limits, running from delivery regardless of when the defect appeared: twenty years for building works, and ten years in all other cases. Those are the figures that the five-year myth has displaced. And where the contractor tells you it will investigate or repair the defect, the two-year period is extended, which is another reason to keep the correspondence.What should you do the day you find a defect?
| Step | Action | Why it matters |
|---|---|---|
| 1. Record it | Photograph and film the defect from several angles, with something in shot for scale, and write a dated list describing each point precisely. | Evidence gathered at the time carries far more weight than a reconstruction. A defect described as paint drips on the skirting board in the living room is provable; a bad paint job is not. |
| 2. Read the contract | Check the specification, the agreed standards, the payment schedule and any general conditions such as the AVA or the UAV that were declared applicable. | General conditions frequently contain their own complaint periods, guarantee schemes and an arbitration clause that decides where the dispute will be heard. |
| 3. Protest in writing | Send a dated letter or email describing the defects and stating that the work does not comply with the contract. | This satisfies article 6:89 of the Dutch Civil Code and starts the two-year period under Article 7:761 running from a date you can prove. |
| 4. Give notice of default | Demand repair and set a reasonable deadline for it, in a separate and clearly worded notice. | Without default, most of the other remedies are not available. This is the step that unlocks them. |
Why do you need a notice of default?
Most remedies only become available once the contractor is in default. That usually requires a written notice that gives a reasonable period for repair.
What can you do if the contractor does not repair?
You can suspend payment, have the work done by another firm, ask for a price reduction or dissolution, and claim damages. Each remedy has its own conditions.
Can you withhold payment?
Where the contractor has not performed, you may suspend your own obligation to pay under articles 6:52 and 6:262 of the Dutch Civil Code. The requirement is proportionality. If the cost of putting the defects right is a small fraction of the contract sum, you cannot withhold the entire final instalment; the part you retain must bear a reasonable relationship to the value of what is wrong. Suspend too much and you are the party in breach, which exposes you to interest, to collection costs and to a claim of your own.Say what you are doing and why. A payment that simply stops, with no explanation, looks like a payment dispute rather than a quality dispute, and the difference matters when a judge or an arbitrator reads the file a year later.Can you hire another firm at the contractor’s expense?
This is the remedy most often misunderstood. You cannot, as a rule, simply instruct another firm and send the bill to the first one. Dutch law offers two routes. You can ask the court for authorisation to have the defect remedied at the debtor’s expense under Article 3:299 of the Dutch Civil Code, which is the clean solution where there is time. Or you can have the work done once the contractor is in default and claim the reasonable additional cost as damages under Article 6:74 of the Dutch Civil Code, converting the claim for performance into a claim for substitute damages under Article 6:87.Whichever route you take, keep the costs defensible. Obtain more than one quotation, choose a proportionate solution rather than an upgrade, and document the state of the work before the second contractor starts. The first contractor is liable for the cost of putting matters right, not for the cost of a better result than you contracted for.When can you reduce the price or dissolve the contract?
Partial dissolution produces a reduction of the price, and it is frequently the most practical outcome where the defect is real but repair is disproportionate. Full dissolution under Article 6:265 of the Dutch Civil Code releases both parties from their future obligations and creates obligations to undo what has been performed; because building work cannot be handed back, this usually resolves into a monetary settlement of value already received.Dissolution is available only where the shortcoming justifies it. Where the work is largely sound, expect a court or an arbitrator to reduce the price rather than unwind the whole contract, and to look closely at whether you gave the contractor a genuine opportunity to repair.Which losses can you claim?
Alongside any of the above you can claim damages under Article 6:74 of the Dutch Civil Code for loss actually caused by the failure: the cost of repair, consequential damage such as water damage to a floor, the cost of temporary accommodation or storage, and reasonable costs of establishing liability and of obtaining an expert report. Statutory interest runs from the moment of default. Loss has to be proved, so keep invoices and quotations, and commission an independent expert report early where the technical cause is contested. In construction disputes the expert report usually decides the case.Which extra protection do consumers have?
If you are a consumer having a home built, you may withhold up to 5 per cent of the price and deposit it with a civil-law notary. The contractor must also tell you in writing how the risks of insolvency and defects are covered.Private clients who commission the building of a home have additional protection, and it is easy to sign it away without noticing.Article 7:768 of the Dutch Civil Code gives a consumer who has a home built the right to withhold up to five per cent of the contract price and to deposit it with a civil-law notary instead of paying it to the contractor. The notary pays the money to the contractor three months after delivery, unless you tell the notary before then that you are withholding it because of defects that have not been repaired. It is the single most effective piece of leverage a consumer has, and it works only if it was arranged before the money was paid.Article 7:765a of the Dutch Civil Code, also new in 2024, requires a contractor building a home for a consumer to inform the client in writing whether and how it has arranged cover for the risk of insolvency and for liability for defects. Read that statement before signing. A guarantee certificate from a recognised guarantee institution is worth considerably more than a promise from a company with no assets, and the absence of any cover is itself information.Finally, check which general conditions apply. Consumer building contracts are often concluded on the AVA conditions, larger civil and commercial projects on the UAV or the UAV-GC. These set their own periods for complaint and for guarantee, and they usually contain an arbitration clause. Conditions that were never handed to you before the contract was signed can sometimes be set aside, but do not rely on that.Where will your dispute be decided?
Check the general conditions first. Many construction contracts send disputes to arbitration or to a disputes committee rather than to the court.Before you start anything, find out where your dispute belongs. The answer is usually in the general conditions, and it is not always a court.Many construction contracts refer disputes to the Raad van Arbitrage in bouwgeschillen, the arbitration board for construction disputes, formerly known as the Raad van Arbitrage voor de Bouw. Its arbitrators are engineers, architects and construction lawyers, which is a genuine advantage where the dispute is technical. Proceedings are private and an award is binding and enforceable, with only limited scope for review by the ordinary courts. A valid arbitration clause takes the case away from the civil court, so read it before drafting a writ.For consumers there is a cheaper route. Where the contractor is affiliated to a trade association that participates in the Geschillencommissie, the disputes committee for building and renovation can decide the matter for a modest fee, generally faster than either arbitration or a court. Check the contractor’s affiliation before you commit to another route.Otherwise the civil courts decide. Claims up to EUR 25,000 are heard by the subdistrict court (kantonrechter), where you may appear without a lawyer; larger claims go to the district court, where representation by an advocate is required. Court fees are fixed by law and adjusted annually. Where speed matters, for instance to stop work or to secure a payment, summary proceedings (kort geding) before the preliminary relief judge (voorzieningenrechter) deliver a decision in weeks rather than months.Mediation remains worth considering, particularly where the relationship has value and the technical dispute is narrow. It resolves nothing on its own, but a mediated settlement of a construction dispute is often reached around an independent expert report that both sides accept, and commissioning that report jointly is frequently the cheapest step available to either party.How can you prevent problems on your next project?
Most construction disputes are decided by documents created before the work started. Three habits do most of the work.Check the contractor before you engage it. Verify the registration and the trading history in the Commercial Register at the Chamber of Commerce, ask for and actually call recent clients with specific questions about how problems were handled, confirm that liability insurance is in place, and look up whether the firm participates in a guarantee scheme or a disputes committee. A contractor that has recently changed legal entity while keeping the same trade name deserves a second look.Write a contract that decides the arguments in advance. Specify the materials by brand, type and quantity rather than by description. Tie payments to verified milestones and never pay a large sum in advance. State the standards the work must meet and refer to the applicable technical rules. Fix start and completion dates, and agree what happens if they are missed. Record who is responsible for permits, waste, power and access. Where the project is substantial, have the contract reviewed before signing. A review costs far less than the dispute it can prevent.Manage the delivery. Inspect thoroughly, take your time, bring an independent expert if the work is complex or expensive, list every point in writing and have the list signed. Ask for the delivery file. And where you are a consumer having a home built, arrange the retention of five per cent with the notary at the outset. Our articles on defects in newly built homes and on construction defects and who is accountable go further into the liability questions that arise once something has gone wrong.In summary
- Complain to the contractor in writing as soon as you discover a defect (Article 6:89 BW).
- Give a written notice of default with a reasonable period for repair; most remedies depend on it.
- Withhold payment only in proportion to the defects, and have another firm do the work only after default or with court authorisation.
- Your claim expires two years after your complaint, and at the latest twenty years after delivery of a building (Article 7:761 BW).
- Check the general conditions: they often send the dispute to arbitration or a disputes committee.
Frequently asked questions
Can I refuse to pay a contractor for bad work?
You may withhold part of the payment, but only in proportion to the defects. Under Articles 6:52 and 6:262 of the Dutch Civil Code, the amount you hold back must bear a reasonable relationship to the cost of putting the defects right. If you withhold too much, you risk being in breach yourself.
What if the contractor disappears or abandons the project?
Send a notice of default by registered post and by e-mail. If the contractor does not respond, you can dissolve the contract, have another firm finish the work and claim the reasonable extra cost as damages under Article 6:74 of the Dutch Civil Code. Where there is time, ask the court for authorisation under Article 3:299 first.
How long do I have to make a claim for hidden defects?
Dutch law has no five-year guarantee. You must complain within a reasonable time after you discover the defect. Your claim then expires two years after that complaint, and in any event twenty years after delivery for building works and ten years in other cases (Article 7:761 of the Dutch Civil Code).
Law & More advises private clients, developers and contractors on construction disputes in the Netherlands: assessing whether work complies with the contract, drafting notices of default, suspending payment safely, recovering the cost of repairs, and conducting proceedings before the civil courts, the Raad van Arbitrage in bouwgeschillen or a disputes committee. Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.
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