Platform on concrete and steel in construction
Following my earlier column for Concrete & Steel Construction on a ruling regarding ‘pop-outs’ in concrete walls, in mid-2024, this time I revisit a dispute in which pop-outs provided the core of the discussion. Whereas the discussion in the 2024 proceeding was more about the technical side of the pop-outs and damages, in the 2026 issue the discussion is more about legal aspects including, in particular, any statute of limitations on claims. Spoiler alert: in the 2024 issue, the Board of Arbitration in Construction Disputes ruled (ruling of May 24, 2024, No. 37,677) that the contractor was liable for the pop-outs. The recent issue before the Rotterdam District Court (ruling Jan. 21, 2026, ECLI:NL:RBROT:2026:540) also ruled that the contractor was liable.
After completion of a new housing development, 31 homes owned by private owners developed defects in the form of ‘pop-outs’ in the concrete walls. Pop-outs are small shards of concrete that become detached from the concrete surface, causing potholes and unevenness. This damage is caused by contaminants in the concrete, which swell over time due to chemical reactions or water absorption. The number of pop-outs diminishes over time, but this process can continue for years. The homes were completed in 2018 and the contracting agreements are subject to the 2014 SWK Warranty and Guarantee Scheme.
During the period 2020-2022, several owners complained to the contractor that there were so-called pop-outs. In February 2022, a timeline for a solution was presented from the contractor, indicating that previous repair work had not yet produced results. Then, in March 2023, the contractor investigated a suitable repair method by conducting a survey for each home. In June 2023, the contractor offered a fee per home based on all walls assessed. This included a draft settlement agreement. In late June 2023, the contractor responded to questions from the owners that the pop-outs were caused by contaminated fly ash in the concrete walls according to independent research from 2020. Furthermore, the contractor sent the final report following the assessment of the walls. In July 2023, the owners held the contractor liable for culpable failure. In August 2023, the contractor denied liability.
In the proceedings, the contractor invoked the limitation period for the owners' claims. According to the contractor, the five-year period of article 15 paragraph 6 General Conditions SWK, applicable in case of hidden defects, would have been exceeded because no summons was issued within five years after completion. And on the basis of article 7:761 paragraph 1 of the Civil Code, according to the contractor, the legal claims are moreover time-barred because the complaints date from 2020 and early 2021 while the summons was then issued not within two years thereafter, but only in December 2024. The court does not follow the contractor's defense.
As a matter of law, according to the court, it is established that the contractor knew of the existence of the pop-out problem in 2020 and 2021. It is also established that the contractor visited the plaintiffs to investigate the pop-out problem itself. Finally, it is established that the contractor was able to get a good idea of the problem because it subsequently offered individual financial compensation. Therefore, according to the court, it is impossible to see what reasonable and legally respectable interest of the contractor would have been harmed if strictly speaking there was a violation of the deadlines mentioned by the contractor. The contractor was also unable to explain or explain this at the hearing.
In the District Court's opinion, the foregoing leads to the conclusion that, if there were any violation of the contractual expiry periods invoked by the contractor, the appeal would be unacceptable by the standards of reasonableness and fairness (Section 6:248(2) of the Civil Code). In this case, the interests of the plaintiffs, all private individuals, outweigh those of the professional contractor. A successful reliance on the said provisions would result in the plaintiffs being inadmissible in their claims, while between the parties it is not in dispute what problems are involved and these problems can still be (re-)assessed despite the lapse of time. Also in play is the fact that the contractor, following its own investigation into the pop-out problems, determined that there were damages and the contractor offered the owners financial compensation.
The reliance on prescription under Section 7:761(1) of the Dutch Civil Code is also rejected. The court ruled that the two-year limitation period does not begin to run until the end of a deadline for repair given by the client, or so much earlier if the contractor has indicated that it will not repair the defect. After complaints came in in 2020 and 2021, the contractor investigated repair options. It was not until June 2023 that the contractor indicated it would not proceed with repairs. Only then did the statute of limitations begin to run, so the December 2024 subpoena was timely issued and the claims were not time-barred. In other words, the 2024 and 2026 judgments show that pop-outs are a serious problem for the contractor to address.
