The five-percent arrangement for new homes: monitor the deposit, deadline and defects

1. Check whether your project falls within the arrangement

Informatiepunt Leefomgeving describes the arrangement for a natural person commissioning a new home outside a trade or business. This is a specific group. A business client or ordinary renovation does not automatically fall under the same arrangement. Bring the purchase and building agreements and first have applicability assessed for an unusual structure, apartment or mixed assignment.

Separate the contract price for building from other payments, such as buying land. A total price in purchase documents does not necessarily identify the amount used for the statutory calculation. Ask the notary to confirm the basis and any existing security. Do not use an arbitrary percentage of a combined purchase price as a standalone deposit calculation.

2. Record the deposit or replacement security

The arrangement uses a maximum portion of the building contract price deposited with the notary instead of paid to the contractor. IPLO says no defect first needs to be demonstrated to use the arrangement during the initial statutory period. This does not mean you may put the money in your own savings account and automatically have the same security.

The contractor can provide equivalent replacement security, such as a bank guarantee. Its wording, callability and duration must support that equivalence. Ask which document applies, where it is held and how a claim is made. Coordinate your payment accordingly, so a deposit and additional withholding for the same purpose are not both applied without assessment.

3. Record the correct handover and contract dates

The handover date matters for the three-month period. Keep the report, invitation, key transfer and other documents showing what the parties agreed about it. A disputed handover date may also produce a disputed release date. Enter important deadlines in your calendar beforehand and request confirmation if the contractor and notary use different dates.

The contract date also determines transitional law for the change on 1 January 2024. IPLO distinguishes agreements from before that date from the new position. If there are several signature dates or subsequent changes, ask which regime applies. The date you move into the home is not automatically the date the building agreement was concluded.

4. Check the contractor’s information letter

Under the new position, between the first and second month after handover the contractor must inform the private client in writing of the right to suspend payment and send a copy to the notary. IPLO describes this as a condition relevant to payment out by the notary too. Keep the letter and check whether its handover date is correct.

According to the official explanation, these specific new letter-and-copy requirements do not apply in the same way to older contracts. Do not therefore rely on one standard message for every project. Even if you think the contractor missed a requirement, it is sensible to notify your own defects and request in writing in time. A dispute about the letter does not replace substantive preparation.

5. Substantiate the amount that must remain longer

If you wish to continue suspension for outstanding defects after the initial period, the amount must be proportionate to the shortcomings. The whole five percent cannot remain merely because one minor point is open. List the defect, notification date, response and supporting explanation of its extent. A repair estimate may help but is not automatically a finally established damages amount.

Tell the notary what amount you wish to retain and why, copying the relevant contractor where appropriate. Woningborg’s own explanation recommends a written block identifying the amount within three months. Check the contract and applicable arrangement alongside that advice. Reporting a defect only to the site worker does not automatically reach the notary managing the security.

6. Have release and further claims assessed separately

The conditions allowing the notary to pay out involve more than the passage of time. Consent, suitable replacement security or a judicial decision may be relevant. Before signing, ask exactly what a completion notification or release declaration means. Do not confirm everything is resolved if you are still investigating a specific complaint, but do not retain the entire deposit without grounds either.

A deposit is not automatic compensation paid to the buyer. If you want money paid to yourself for third-party repairs, an appropriate basis must exist. Also have possible contractual and statutory defect claims examined separately; the end of a deposit does not automatically mean every liability question has ended. Contact your own adviser immediately where an incorrect release is threatened.

7. Fictional example: minor defect and intended full release

Suppose a new home has been handed over and after a few weeks a poorly closing window frame remains. The contractor says repairs are scheduled. The buyer wants all security retained indefinitely, while the notary says payment out is planned soon. The buyer has not yet notified the complaint and an amount to the notary in writing.

A useful preparation checks the contract date, information letter, handover date and extent of repair. A suitable amount to retain can then be substantiated. This fictional example fixes no deposit amount and predicts no proper release. It shows why timely communication and proportionality need attention alongside the complaint itself.

8. Checklist before the three-month period ends

Do not wait until the last day to write to the notary. Ask in time what document and amount are needed and have a disputed release legally assessed. Keep confirmation that your specific request was received and agree how repairs and later release will be communicated.

• Purchase and building agreements and their conclusion dates.
• Correct building contract price, deposit confirmation or complete bank guarantee.
• Handover documents and the calculated three-month date.
• Information letter with copy and overview of outstanding defects.
• Written reasons for the amount and the notary’s acknowledgment of receipt.