Putting a contractor in default: a notice suited to your building problem

1. Decide what the letter must achieve

Do you want the contractor to start, finish missing work or repair defects? Choose a specific performance requested. A letter simultaneously demanding full repayment, resumption and immediate termination without coherence may be unclear. In a short opening paragraph, identify the unfulfilled agreement and solution required within the period offered.

The letter’s function is more than expressing anger. It helps demonstrate what the other party could still do and when a final opportunity ended. Assess whether legal default is needed for your next step. In some situations it arises without formal notice, but a consumer should not infer an exception merely from thinking the contractor has had enough chances.

2. Address the right contracting party

Check accepted quotation, agreement and invoice. Is your contractor a bv, vof or individual? Put the full name and known business address on the letter. Record different trading names too. The site supervisor is not necessarily your contracting party; addressing only them may unnecessarily obscure formal communication.

Use the contractual correspondence address and check special notice arrangements. If sending by email and post, preserve identical content and attachments. Holding a director personally liable is a different legal act from putting the contractor in default. Do not mix them without a specific basis and advice.

3. Describe failures so they can be checked

Make a numbered list with location, agreement and departure. Specify, for example, which window does not close or which unperformed item appears in the specification. Attach relevant photographs and quotation passage. The contractor must understand what you say needs repair; an unexplained photo folder does not always achieve that.

For disputed technical causes, first investigate what is established and what remains uncertain. Do not present suspected structural danger as a final expert conclusion without a report. You can describe observations and request investigation or a solution. Carefully distinguishing fact and suspicion makes the letter more reliable and avoids an unworkable repair demand.

4. Give a reasonable period with a clear endpoint

ConsuWijzer mentions a reasonable period to solve the problem. Duration depends on work, material availability, previous preparation and genuine urgency. State a specific end date and whether you expect a response, programme or completed repair by then. A response period differs from a performance period.

Do not choose fourteen days merely because a model allows that for a response. Assess whether the opportunity is sufficient for the performance required. Document necessary access and availability too. A period reasonable on paper may become unworkable if you provide no access.

Notice is not required in every situation for default to arise. Article 6:83 BW mentions, for example, expiry of a specified performance period unless it serves another purpose, and a communication from which you must infer that the contractor will not perform. A programme’s target date is therefore not automatically such a binding final deadline. Keep the complete communication for a refusal: requesting discussion or temporary inability differs from clearly refusing the agreed performance.

The Hoge Raad has emphasised that statutory cases without notice are not exhaustive and reasonableness and fairness can matter in the actual circumstances. That is no licence always to skip a final repair opportunity. Compare agreed date, earlier demands, access offered and exact response. If uncertain, assess whether a focused final letter is needed before announcing replacement or termination for breach.

5. Announce a suitable next step

The ACM model includes a repair request and discusses possible consequences if no solution follows. Adapt it to your work and position. Intended partial termination or third-party repair must meet legal conditions; do not say every future cost is already unconditionally payable by the contractor.

If suspending payment, check basis and amount. Formal notice does not automatically justify an arbitrary withholding. Make payment dispute and repair request traceable: what is undisputed, what are you temporarily withholding and why, and what performance remains requested? Preserve every calculation behind the letter.

6. Preserve sending, response and follow-up

Keep the signed or sent version, all attachments and dispatch/receipt details. Create a timeline of discovery, earlier reports and final deadline. Do not later alter a sent document as though revised text were the original. An addition can be sent as a separate new letter.

Have any concrete proposal assessed on its merits. A denial, partial promise and express refusal differ. Expiry does not automatically produce the best measure for you. Seek assessment before a replacement removes everything or you finally end the contract yourself; evidence may also disappear.

7. Fictional example: leakage after renovation

Suppose a consumer reports a leak around a renewed roof window. The contractor says it will dry naturally but no inspection has occurred. The consumer wants to demand replacement of the whole roof within two days. The cause remains unexamined, leaving the requested performance insufficiently supported.

A more careful file contains specific leak observations, specification, photographs and earlier replies. The letter can then require suitable investigation and repair within a reasoned period. This fictional example prescribes no technical solution and predicts no liability. It shows why a clear failure and feasible request are both needed.

8. Checklist before sending

Ask your adviser to check party, repair request, deadline and announced consequences together. Put any acute safety question separately at the top. Agree when to return with the response or news that the deadline expired without solution.

• Correct legal contractor and contract with all relevant terms.
• Numbered failures linked to agreement and location.
• Photographs, earlier reports and any expert findings.
• Specific reasonable end date and access opportunities offered.
• Complete sent letter, attachments and dispatch/receipt evidence.