Standard terms and conditions are widely used in the construction industry, including the UAV 2012 and AVA 2013. These terms and conditions, along with many others, contain expiry periods.
This means that the right to bring a claim against the contractor for a defect expires once that period has elapsed. Unlike a limitation period, an expiry period cannot be interrupted.
In December 2024, the Amsterdam Court of Appeal ruled that an expiry clause in an agreement with a consumer was unfair and unreasonably onerous, and that the contractor could not rely on it. The contractor subsequently appealed to the Supreme Court. On 25 September 2026, the Supreme Court handed down its judgment.
Under European Directive 93/13/EEC on unfair terms in consumer contracts, a contractual term is unfair — and must therefore be disapplied — if (i) it has not been individually negotiated and (ii) it creates a significant imbalance in the parties’ rights and obligations to the detriment of the consumer, contrary to the requirement of good faith.
A private client entered into a construction contract with a contractor for the construction of a house. The contract was subject to the AVA 2013 (the General Administrative Conditions for Construction Contracts 2013). Article 16.3 provides that a legal claim relating to a defect is inadmissible if brought more than five years after the expiry of the maintenance period.
The Court of Appeal ruled that the clause was unreasonably onerous and unfair. Among other things, the Court considered that the expiry period replaced the statutory limitation period, which can be interrupted, causing the limitation period to start running again.
The purpose of the expiry clause was the same as that of a limitation period: to protect the contractor against late claims that become increasingly difficult to defend as time passes. However, the expiry clause had more far-reaching negative consequences for the consumer.
Because an expiry period cannot be interrupted, the client has less time to bring proceedings against the contractor or reach a settlement than under the statutory limitation periods, which can be extended through interruption. As a result, the consumer is placed in a significantly worse position than they would have been in had the statutory rules applied.
The Supreme Court took a different view. When assessing whether a term in standard terms and conditions is unreasonably onerous or unfair within the meaning of the Directive, account must also be taken of whether a comparable term appears in standard terms and conditions drawn up in consultation with consumer organisations.
The question, therefore, was not whether consumer organisations had been involved in drafting the AVA 2013 — these conditions were unilaterally established by Bouwend Nederland, the trade association for construction companies. Rather, the question was whether, as the contractor had argued, the expiry clause or a comparable clause appeared in other standard terms and conditions that had been drawn up in consultation with consumer organisations.
Expiry clauses can therefore continue to be used in contracts with consumers.
If you have any questions, please contact Per van der Kooi, Attorney at Law specialising in tenancy law.
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