Wkb liability: duty to warn and consumer file

With the introduction of the Building Quality Assurance Act (Wkb), expected on January 1, 2023, liability for entrepreneurs in the construction sector will also change. Contractors (including freelancers and handymen) will soon remain liable for the work they have completed for 20 years, regardless of the consequence class or permit obligation. Below you can read more about what is stipulated in the Wkb when it comes to liability.

Under the Wkb, a client must notify the contractor within a reasonable time when he has found defects. After reporting these defects, a two-year statute of limitations takes effect within which the client must take his case to a court. Liability lapses once this period has expired. This is also indicated in the UAV 2012, the UAV-GC 2005, the AVA 2013 and various warranty regulations.

Alert duty

The Wkb stipulates that contractors must inform their clients if risks are identified during work. If this warning obligation is not met, the contractor does not fulfill his obligations as a professional. This also applies to risks that the contractor did not notice, but should have recognized as a professional. Warning can be verbal or written, with the latter of course always being better for the burden of proof.

Risk insurance

Contractors who work for private clients would do well to inform these clients in writing before signing the contractor's contract about how they are insured against risks that are attributable to them. This may involve risk insurance or some other form of financial security. If no arrangements have been made for this, the contractor must also inform his principal in advance.

Consumer File

Under the Wkb, contractors must provide their client with a completion file after the work is delivered, known as a consumer file. Initially, delivery of a consumer file was mandatory for all works delivered immediately after the introduction of the law. The reason for this was the amendment of Article 7:757a of the Civil Code (BCC). This states that upon notification that the work has been completed, the contractor must submit a consumer file on the construction work completed. However, this amendment does not provide for the transitional law, which would require contractors to submit a consumer file for works completed before the effective date of the Wkb as well. Following questions from the Senate, the minister decided to make an adjustment at the end of 2021. This means that the obligation to submit a consumer dossier only applies to contracts for contracting work concluded after this article enters into force, and that clients will only receive a consumer dossier from that date.

Reverse burden of proof and liability

Regarding the adjustment of the reverse burden of proof and the 20-year liability, nothing is reported. Therefore, it will still be effective immediately for all works delivered after the implementation date. Of course, this will still have an impact on securing registrations and measurements that show that at the time of delivery everything meets requirements of the Building Code (soon to be BBL).

This text is an adaptation of several blogs that previously appeared on Kiwa's theme page on the Wkb: https://www.kiwa.com/nl/nl/specials/wkb/. Source: https://www.debouwadvocaat.nl/