Have your building contract reviewed before accepting construction risks

1. Establish who must deliver each part of the building work

First write in ordinary language what the contractor must build and what you arrange yourself. Specify, for example, demolition, foundations, structure, services, finishes and connections to existing facilities. Record whether the contractor only carries out work or also designs and calculates. A label such as “complete extension” does not prevent disagreement if the underlying drawing omits a component.

Identify the correct contracting parties. A trading name or the name of a site worker does not always identify the business legally responsible. Also check who may approve changes for each party. If you directly engage several businesses, clarify who coordinates connections and planning. Appointing one contractor does not, without further agreement, make them responsible for every other party on site.

For private housebuilding, first establish whether the special section in Article 7:765 of the Burgerlijk Wetboek (BW, Dutch Civil Code) applies: construction of a home commissioned by a natural person acting outside a trade or business. Article 7:766 requires certain contracts within that section to be in writing and the instrument or a copy to be provided to the client. After receiving it, the client has three days to withdraw. If, after exercising that right, the same parties conclude another contract for the same home to be built within six months, that cooling-off period does not arise again.

Article 7:766(3) contains an important exception: these writing requirements and this cooling-off period do not apply if the home is built on land already belonging to the client and the contract is unrelated to the purchase of that land. Nor is this a general three-day rule for every renovation. Give the adviser the ownership position, any land purchase and related documents. Carefully record the instructions even outside a compulsory written regime; a legal exception is no practical reason to build without clear agreements.

2. Make the attachments a usable whole

List all contract documents by date and version: agreement, quotation, estimate, drawings, calculations and terms. Agree how inconsistencies are resolved. A hierarchy may help, but first correct the actual contradictions. If a drawing shows underfloor heating and the estimate excludes it, an abstract priority clause remains an expensive way to litigate about the intended agreement.

The ACM quotation checklist highlights matters including work, materials, drawings and planning. Apply that check to the final contract too. Explicitly record exclusions, provisional allowances still to be filled in and who supplies information needed for selections. Keep the accepted version; a subsequently altered digital document must remain identifiable as a change, rather than silently replacing the original agreement.

3. Allocate design, information and permission tasks carefully

Record who applies for permission, what information is needed and the consequences if approval is not obtained. Separately determine who supplies technical calculations. Contractual allocation of tasks does not automatically change public-law obligations towards the authorities. Permission also does not mean the contractor has resolved every civil-law quality issue.

The client’s own drawings or materials do not transfer risk to the client without limit either. Article 7:754 BW imposes a duty to warn of errors and unsuitability the contractor knew or reasonably ought to have known about. IPLO explains that for structures the warning must be timely, written and unambiguous, identifying concrete consequences for proper execution. This protection cannot be varied to a consumer’s detriment. Have any broad clause assigning “all risks to the client” specifically reviewed.

4. Link payments to verifiable performance

Determine the price model and how instalments relate to the work. A percentage due at a measurable construction stage is easier to verify than payment once a contractor says the job is “almost finished”. Record what information accompanies an instalment invoice and how a dispute is handled. A large advance deserves separate assessment of security and the risk of the work not being completed.

Also describe how changes are requested and approved. Specify who must report price and scheduling consequences and which records are retained. The statutory assessment of additional work remains relevant; an internal form does not wholly replace it. Have deemed acceptance or a clause automatically making every additional hour chargeable checked. Agree too how savings or omitted components are accounted for, so reductions in work do not later prove merely an oral expectation.

5. Arrange access, planning and a workable response to problems

A good schedule identifies necessary client decisions, lead times and dependencies on other work. Distinguish target dates from genuinely agreed completion dates and record how delays are reported. A penalty clause requires attention to its precise trigger, exceptions and interaction with damages. Do not assume without assessment that every specified number of working days automatically constitutes a strict deadline.

Also record practical arrangements for investigation and repair: contact person, access to the home and protection of existing belongings. When a problem arises, it must be clear who responds, what information is required and when a concrete proposal follows. This assists execution without removing the parties’ statutory rights. Have a clause requiring immediate full payment or termination before a substantive response legally reviewed.

6. Describe handover and the transfer of information

Agree how the contractor notifies readiness, how you inspect and how findings are recorded. A preliminary inspection and formal handover do not automatically have the same effect. Explicitly identify the intended moment and who may sign. Ensure you can record visible items, untested installations and any reservations specifically.

For contracts from 1 January 2024, the consumer dossier under Article 7:757a BW is also relevant. IPLO describes drawings, calculations and information about materials, installations, use and maintenance, among other things. The parties may agree different arrangements, so consciously ask what you will receive. The consumer dossier is also different from the dossier for the competent authority. Assess an omission clause by its practical effect: will you later be able to maintain the property, check construction and provide necessary information?

7. Fictional example: design and execution do not fit together

Niels wants an additional storey built. His architect provides a preliminary design; the contractor offers execution while excluding “all structural risks”. The draft identifies nobody responsible for the final calculation. Niels wants to sign to meet the start date, but first has the complete package reviewed.

The lawyer asks who commissions the calculation, who incorporates its outcome in the price and what happens if the design needs changing. The parties amend the contract package, allocate the missing task and record a decision point before execution. The duty to warn also remains explicitly in view. This does not prevent every building problem, but clarifies concrete responsibilities better than a general exclusion of risk could.

8. Checklist for a lawyer’s contract review

Supply the documents as one coherent file. Identify what has already been agreed on a binding basis and what is still a draft. Request an assessment of the main risks and specific wording for amendments, so the discussion with the contractor can produce a concrete result.

• The complete agreement with numbered attachments, drawings, terms and the accepted quotation.
• An overview of design, execution, permission and coordination tasks for each party.
• Price model, payment stages, security and the procedure for changes and savings.
• Schedule, dependencies, handover arrangements and contents of the dossier to be transferred.
• Your greatest financial risk, existing promises and the date by which a decision is needed.