Article 6:174 of the Dutch Civil Code · strict liability · maintenance
Liability for property owners
In a claim about your premises everything turns on one question: was there a defect in the structure, and does the part that came away belong in law to that structure?
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In brief
Article 6:174 of the Dutch Civil Code makes the possessor of a structure liable where that structure does not meet the requirements that may be set for it in the given circumstances and therefore creates a danger. That is a strict liability: whether you knew of the defect is not decisive for liability itself. The discussion is almost always about the standard, not about your good intentions.
More parts belong to the structure than owners expect. An advertising sign on the facade, a canopy, the boundary fence, the terrace, the paving on your own land and the pipework in the building are usually counted as part of it. If something comes away and hits a parked car or a passer-by, the claim goes to the owner in the right place.
The possessor is not always the person using the premises. Under a long lease possession lies with the leaseholder, in a building divided into apartments with the association and the apartment owners together. So establish who the possessor is in law before a loss occurs; otherwise the discussion only starts after the victim has come forward.
The structure of the cover in three parts, with an overview per situation below.
The basis
Rebuild value
What it costs to rebuild the premises.
Not the market value
Not the WOZ value (the Dutch property valuation)
Guarantee against underinsurance
Permanently fixed
What is included
Everything permanently attached to the building.
Building and installations
Outbuildings
Boundary fences
Optional
Extensions
What is excluded as standard.
Glass
Garden landscaping
Inherent defect and foundations
What is covered
Situation
Standard
With extension
Fire, smoke and lightning strike
Yes
Yes
Storm from force 7 upwards
Yes
Yes
Water damage from a burst pipe
Yes
Yes
Glass breakage
Sometimes
Yes
Groundwater coming through the floor
No
No
Wear and deferred maintenance
No
No
This overview is general in nature and is not personal advice. What is actually covered, including exclusions, limits and the excess, is set out in the policy conditions and the insurance card (verzekeringskaart) of the insurer; you receive both before you take out cover. Taking out cover without advice? Then read what execution only means for you.
Where things go wrong in practice
Four points that make the difference between a policy that pays out and one that does not.
What counts as a defect, and what does not
Premises do not have to be perfect. The yardstick is what may be expected in the given circumstances: more of a shopfront with the public passing than of a locked warehouse. A worn handrail, a loose paving slab on a walkway or a roof tile that comes away in normal wind is a defect. A storm of exceptional force or deliberate damage by a third party usually is not.
Appurtenances are the most common cause of loss
The large injury claims rarely come from the structure itself. They come from what hangs on it or lies around it: an advertising sign, a sunblind, a balcony railing, a drain in the paving, a slippery entrance. Include those parts expressly in your inspection round and keep a dated report with photographs for each round. When a claim comes, that report is the only thing that can demonstrate you took care.
Establish who the possessor is before there is damage
Ownership, long lease, building rights and division into apartments each place possession with a different party. A commercial occupier of defective premises can also be held liable in addition. When you take out a policy, state the correct legal interest. If you insure the premises in the name of a holding company while an operating company is the possessor, the insured is not the party that receives the claim.
What this cover does not pay
You pay to repair the defect itself. The policy pays the loss others suffer as a result. Damage caused by intent or wilful recklessness on the part of the insured is excluded under Article 7:952 DCC. Gradual effects, such as damp seeping through to the neighbours over the years, fall outside cover for a sudden event. Pure financial loss without injury or property damage is not covered here either.
Care, custody and control is excluded as standard
Damage to property that you have in your care: borrowed, hired, being worked on or held in safekeeping: is not covered by the standard cover. For professions where this is the core of the work, a separate care, custody and control module with its own limit is essential.
Your AVB excludes damage caused with or by motor vehicles. It is precisely there that the Hoge Raad (the Dutch Supreme Court) recognised a separate liability based on the duty to act as a good employer: an employer must arrange proper insurance for employees who take part in traffic for work. A WEGAS insurance policy fills that gap.
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I knew nothing about the defect. Am I still liable?
In principle yes. Article 6:174 DCC is a strict liability: knowledge of the defect is not a requirement. Your defence lies not in ignorance but in the standard itself. You can argue that the structure met what could be expected of it in those circumstances. For that you need inspection reports, photographs and maintenance invoices.
Do my fence and advertising sign form part of the structure?
Usually yes. Works permanently joined to the land or to the building are counted as part of the structure, including boundary fences, canopies, advertising signs, paving on your own land and fixed installations. If such a part falls over or comes away and causes injury or property damage, liability runs through the same provision as for the facade or the roof.
Who is the possessor under a long lease or after division into apartments?
Under a long lease the leaseholder is in principle the liable possessor, not the bare owner. In a building divided into apartment rights, possession of the common parts lies with the owners jointly, represented by the association. Make sure the policy is in the name of the right party; otherwise the insured is not the one who receives the claim.
When do I have to report a claim?
As soon as you become aware of an event that could lead to a claim. Article 7:941 DCC requires you to notify as soon as that is reasonably possible and to provide all information relevant to the assessment. So do not wait for a letter holding you liable: report the incident, keep the damaged part and record the situation in photographs.
Finass Verzekert is a trading name of Finass Advies B.V. We advise on and arrange non-life insurance on the basis of an objective analysis of several insurers, and receive commission for this from the insurer, which is included in the premium. You pay no separate advice fee. Before you take out cover, we establish your wishes and needs.
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