नेदरल्याण्ड्समा नयाँ निर्माण गरिएको घरमा त्रुटिहरू: दायित्व, समयसीमा र उपचारहरू

For defects in a newly built home in the Netherlands, the building contractor is liable, not the seller of the plot. Since 1 January 2024 the contractor also remains liable for defects that were not discovered at delivery, unless he proves they cannot be attributed to him (Article 7:758(4) of the Dutch Civil Code, BW).

Your position depends on three things: the delivery report, how quickly you complain in writing, and the deadlines of Article 7:761 BW. A claim expires two years after you protested and, for a building, in any case twenty years after delivery. This article explains the rules under डच निर्माण कानून, the guarantee schemes and how to enforce your rights.

Who is responsible for defects in a new build home?

The building contractor is responsible for the house; the seller or developer is responsible for the plot. A new build home is usually bought under a purchase and construction agreement (koop- en aannemingsovereenkomst), which combines a sale of land with a construction contract under Articles 7:750 and following BW.

Complaints about the house go to the party that undertook to build it, as named in the agreement. Complaints about the land, such as soil contamination or a title restriction, fall under the purchase rules: under Article 7:17 BW the plot must have the qualities you were entitled to expect.

Because the sale concerns a home bought by a consumer, it must be in writing and you have a three-day cooling-off period under Article 7:2 BW. Use it to check the technical description, the drawings and the payment schedule: they are the yardstick for every later complaint. A हस्ताक्षर गर्नु अघि समीक्षा गर्नुहोस् is worth more than a dispute afterwards.

What counts as a defect?

A defect is any respect in which the delivered home falls short of the contract or the building rules. The building rules have been set out in the Buildings in the Living Environment Decree (Besluit bouwwerken leefomgeving) since the Environment and Planning Act (Omgevingswet) entered into force on 1 January 2024.

A home that matches the drawings but breaches the building rules is still defective. Minor deviations that do not affect use, value or safety will usually only justify repair. Serious defects include foundation movement, failing load-bearing elements, water ingress and unsafe installations.

What changed under the Quality Assurance for Building Act?

The Quality Assurance for Building Act (Wet kwaliteitsborging voor het bouwen, Wkb) entered into force on 1 January 2024. For simple buildings in consequence class 1, such as single-family homes, an independent quality assurer (kwaliteitsborger) now checks the construction instead of the municipality.

The private-law changes apply to construction contracts generally and strengthen your position as a buyer.

• Under Article 7:758(4) BW the contractor is liable for defects not discovered at delivery, unless they cannot be attributed to him. For a consumer this rule is mandatory.
• Under Article 7:757a BW the contractor must hand you a file (consumentendossier) at delivery showing that the work meets the agreed requirements.
• The contractor must warn you in writing, clearly and in time, about errors in the assignment and their consequences.
• Under Article 7:765a BW the contractor must tell you in writing whether and how the work is insured or secured against defects and insolvency.

Under Article 7:768 BW you may have the last 5% of the contract price deposited with the civil-law notary. Since the Wkb, the notary releases it to the contractor only after you have been able to say whether you want to keep it back because of defects. Do not release it on the day of delivery: it is your strongest practical lever.

Why is delivery so important?

At delivery (oplevering) the risk passes to you, and the contractor is discharged for defects you reasonably should have discovered then (Article 7:758 BW). Everything you can see must therefore be recorded in the delivery report (proces-verbaal van oplevering).

Inspect the home with an independent building inspector, test the installations, open every window and door and photograph everything. Do not sign a clean report on the strength of an oral promise, and make sure each defect is described precisely with a deadline for repair.

The model contracts in the Dutch new build market provide for a maintenance period of three months after delivery. During that period the contractor must repair the points in the report and any new defects. When it ends, your statutory rights and any guarantee cover continue.

कुन समयसीमा लागू हुन्छ?

Two separate clocks run. First, you must protest within a reasonable time after you discovered, or should reasonably have discovered, the defect (Article 6:89 BW). There is no fixed two-month period for a home, but waiting months without a written complaint can cost you your claim.

Second, under Article 7:761 BW a claim for a defect expires two years after you protested. If you gave the contractor a period to repair, the two years start when that period expires or when the contractor makes clear he will not repair. In any case the claim expires twenty years after delivery for a building and ten years for other work.

You interrupt a running limitation period with a written demand that clearly reserves your right (Article 3:317 BW). If there is any doubt about the date, send one.

What do Woningborg and SWK add?

Most new build homes are registered with a guarantee institution, in practice Woningborg or SWK. This is contractual protection on top of the statutory rules; it is not automatic, so check the contract and ask for the guarantee certificate.

The scheme covers two risks: the insolvency of the contractor before completion, and defects in the finished home for a period set in the applicable guarantee regulation, with a longer period for serious defects. The scheme has its own notification procedure and deadlines, and it excludes normal wear, work by yourself or third parties and usually consequential loss. A complaint under the scheme does not interrupt your claim against the contractor, and vice versa.

How do you enforce your claim?

Start in writing. Describe the defect, when it appeared and which part of the technical description or drawings it departs from, and give a reasonable period for repair. That letter is a notice of default (ingebrekestelling) under Article 6:82 BW.

If the contractor disputes the cause, an independent expert report is usually decisive. If the other side will not accept a report you commission, you can ask the court for a provisional expert examination (voorlopig deskundigenbericht) or a प्रारम्भिक साक्षी परीक्षण before proceedings start.

Once the contractor is in default, you can claim repair, have the work done by others and claim the costs as damages under Article 6:74 BW, or in serious cases dissolve the contract under Article 6:265 BW. You may also suspend payment of instalments still due.

Many new build contracts refer disputes to construction arbitration or to a disputes committee under the guarantee scheme. Under Article 6:236(n) BW a consumer must be given at least one month to choose the ordinary court instead. In urgent cases, such as active water ingress, interim relief proceedings (kort geding) remain available.

खरिदकर्ताको रूपमा तपाईंले के हेर्नुपर्छ?

As the buyer, you must record and report defects in time. Check these points.

• Is every visible defect described precisely in the signed delivery report, with a repair date?
• Has the 5% been deposited with the notary, and have you told the notary in writing that you want to keep it back while defects are open?
• Did you receive the consumer file and the written information on insurance and security?
• Is the home registered with Woningborg or SWK, and what are the notification deadlines in that scheme?
• Did you protest in writing within a reasonable time, and do you know when the two-year period of Article 7:761 BW ends?

What should you check as a contractor or developer?

As the contractor, you carry the burden of proof for defects found after delivery. Check these points.

• Have you given the client the consumer file at delivery, as Article 7:757a BW requires?
• Did you warn the client in writing about errors in the design or instructions, with their consequences?
• Have you informed the consumer in writing about insurance and security before signing?
• Is your documentation of materials, inspections and photographs during construction complete enough to show that a later defect is not attributable to you?
• Does your contract offer the consumer the one-month choice for the ordinary court if it contains an arbitration clause?

What can we do for you with defects in a new build home?

हाम्रो घर जग्गा वकील assist buyers, contractors and developers in new build disputes.

• We review the purchase and construction agreement before you sign.
• We check the delivery report and advise on keeping back the 5% at the notary.
• We draft the written protest and notice of default, and calculate the deadlines of Article 7:761 BW.
• We arrange an expert examination or a preliminary witness examination.
• We conduct the case before the court, the arbitration board or the disputes committee.

सारांश

• The contractor answers for defects in the house; the seller answers for the plot.
• Since 1 January 2024 the contractor is liable for defects not discovered at delivery unless he proves they are not attributable to him (Article 7:758(4) BW).
• Record all visible defects in the delivery report and keep the 5% at the notary while defects are open.
• Protest in writing within a reasonable time; the claim expires two years after your protest and at the latest twenty years after delivery.
• Woningborg or SWK cover comes on top of your statutory rights and has its own deadlines.

बारम्बार सोधिने प्रश्नहरू