Building Quality Assurance Act

As of 1 January 2024, the Building Quality Assurance Act (Wet Kwaliteitsborging voor het bouwen or Wkb) has come into force. The purpose of this act is to improve quality in the construction sector. To achieve this, a new system of construction supervision has been introduced and the responsibilities of contractors have been expanded.

What is private quality assurance?

The Wkb consists of two components. Firstly, municipal supervision of compliance with the Building Decree (Bouwbesluit) has been replaced by private quality assurance. In summary, this means the following:

Previously, a building was inspected after completion by a municipal building inspector. The inspector assessed – broadly speaking – whether the building complied with the Building Decree. This task has now been taken over by the private quality assurer.

The quality assurer evaluates the building using tools developed for this purpose. If the assurer believes there is justified confidence that the building complies with technical building regulations, they issue a statement: a declaration of a ‘reasonable suspicion’ that the building complies.

Changes to the Civil Code

In addition to the changes in supervision and quality inspection by the assurer, several provisions of the Civil Code (BW) have been amended. These changes relate to:

• Expanding the liability of the contractor after delivery
• Changes to the contractor’s duty to warn
• Introduction of the delivery dossier
• Contractor’s duty to inform about securities and guarantees
• Contractor’s duty to inform about the right of suspension

These changes are discussed in more detail below.

Contractor’s liability after delivery

Article 7:758 BW regulates the contractor’s liability. The general rule is that, after delivery, the contractor is no longer liable for defects that the client could reasonably have discovered at the time of delivery. In other words, the contractor is not (any longer) liable for visible defects not reported at delivery.This general rule is limited in the new paragraph 4 of this article: the contractor is liable for defects not discovered at delivery (unless these defects cannot be attributed to the contractor). This shifts more responsibility onto the contractor. A client does not immediately lose their rights if they overlook a defect.

This article cannot be deviated from to the detriment of consumer-clients. In other cases, deviation is only allowed explicitly in the agreement. It is uncertain whether deviation in general terms and conditions meets this requirement. Contractors are therefore advised to explicitly exclude the application of paragraph 4 in agreements with professional clients.

Contractor’s duty to warn

Under Article 7:754 BW, a contractor must warn of errors that fall within the client’s responsibility and that the contractor knew or reasonably should have known. Two new criteria have been added to this duty: the warning must now be issued in writing and unambiguously, and it must be directed specifically to the client.
In addition, the contractor must, in the warning, point out the potential consequences for proper performance of the agreement. It is not yet entirely clear what this requirement entails, but it may mean a stricter duty to inform about additional costs or delays in the work resulting from the identified error. The new duty to warn applies immediately from 1 January 2024, including to existing agreements.

Delivery dossier

From now on, contractors must compile a delivery dossier for each project (Article 7:757a BW). This dossier must be provided to the client upon delivery and is intended to give complete insight into whether and how the contractor has performed the agreement. The delivery dossier must include at least the following documents:

a. drawings and calculations relating to the constructed building and its associated installations, as well as a description of the materials and installations used and the functions of the building;
b. data and documents necessary for the use and maintenance of the building.

New duties to inform for contractors

Under the new Article 7:765a BW, a contractor is required to inform the client whether, and if so how, they have covered performance of the work and liability for defects with insurance or other financial securities.

Additionally, from 1 January 2024, contractors must formally ask consumer-clients in writing whether they wish to exercise their (existing) right of suspension after delivery (commonly known as the 5% retention scheme). This new duty is further elaborated in paragraph 2 of Article 7:768 BW.

These new duties to inform apply only to consumer-clients having a new home constructed.

Phased implementation

The Wkb features a ‘soft landing’; the changes are being implemented gradually. For example, the Wkb will apply until (at least) 2028 only to new construction of simple buildings, such as single-family homes and small commercial properties. During this phase, the law will effectively be ‘trialled’.