Track Record: Roof Warranty Claim Rejected — Contractor Not Liable After Unilateral Installation of Rooftop Terrace

Mr. Vincent Besters represented a roofing contractor who successfully defended against a warranty claim by an owners' association and property owner

In July 2018, the Noord-Holland District Court (Haarlem) issued a judgment in a case in which mr. V.M. Besters acted as representative for a roofing company. An Owners' Association (VVE) and property owner Kess Corporation N.V. claimed damages and repairs based on a written warranty for roofing work. The court rejected the claims.

What was the case about?

In 2008 the contractor (Mr. Besters' client) carried out roofing work on a building in Haarlem for Kess Corporation, installing new roofing and insulation. In 2009 the contractor issued a written 10-year warranty on the roof.

In that same year, Kess — without consulting the contractor — had its own staff install a rooftop terrace on the roof. The building was subsequently split into apartment rights and the VVE was established.

Years later, leaks appeared. The contractor had carried out several repairs but ultimately refused to accept further liability: the rooftop terrace, installed without his knowledge or consent, had damaged the roofing.

The VVE and Kess sued the contractor, claiming damages and repairs under the warranty.

The contractor's defence

Mr. Besters argued on behalf of the contractor that:

• The rooftop terrace was installed unilaterally by Kess, without consulting or obtaining consent from the contractor;
• The warranty lapsed as a result of works carried out by third parties on the roof;
• The terrace made it impossible to determine the exact cause of the leaks;
• The contractor had already warned Kess after discovering the terrace that the warranty would lapse.

What did the court decide?

The subdistrict court ruled largely in the contractor's favour:

• Reliance on the warranty unacceptable. The VVE's and Kess's reliance on the written warranty was unacceptable by standards of reasonableness and fairness (Article 6:248(2) of the Dutch Civil Code). Kess had installed a rooftop terrace without consulting the contractor, making it impossible for the contractor to determine whether the leaks were caused by his work or by the terrace installation.
• Standing of the VVE. The court also examined whether the VVE had authority to bring proceedings: the 2006 model regulations required a general meeting resolution authorising legal action. This had not been sufficiently demonstrated, affecting the VVE's standing.
• Warranty is not absolute. A warranty does not create an absolute right to repairs if the beneficiary has itself carried out works that may have caused the damage.

What does this mean for entrepreneurs and VVEs?

This ruling provides practical lessons for both contractors and owners' associations and property owners:

• A warranty is not a blank cheque. If a client carries out works after completion that affect the warranted items, relying on the warranty may be contrary to reasonableness and fairness.
• Do not alter the work without consultation. As a VVE or owner, never have third parties carry out work on elements covered by a live warranty without informing the contractor and obtaining written consent.
• Document warranty conditions carefully. As a contractor, explicitly state in the warranty document under which conditions the warranty lapses, particularly in the event of works by third parties.
• VVEs need a resolution to litigate. Do not forget that the model regulations typically require a general meeting resolution before a VVE can commence legal proceedings.

Case Reference

This post is based on ECLI:NL:RBNHO:2018:6093.

Mr. V.M. Besters acted as representative for the defendant contractor in this case.