In France, as it the case in many other countries, a 10-year building guarantee is in place for major building works.
Article 1792 of the Civil Codes states: “Any builder of a structure is fully liable to the owner or purchaser of the structure for damage, even resulting from a defect in the ground, which compromises the solidity of the structure or, by affecting one of its constituent elements or equipment, renders it unfit for its intended purpose.”
This rule operates irrespective of whether the builder has taken out insurance to cover their liability under the ‘decennale’. It also applies on a change of ownership, subject to the 10-year limitation period.
Article 1790 of the Civil Code defines those persons to whom the guarantee applies, and includes: “Any person who sells, after completion, a construction they have built or had built.”
That being the case, a property owner who undertakes major works to their property, which they later sell, would be liable, irrespective of the fact that they might not be a professional.
In a case recently heard in the Supreme Court, the Cour de Cassation, in 2015 a couple purchased a detached house from a seller on which, in 2007, the seller had constructed a retaining wall, which separated the property from the neighbouring property.
Within a year of buying the property the new owners discovered cracks in the wall, which had been covered by vegetation. An expert confirmed that the wall was swelling and at risk of collapse.
When the case was heard in the appeal court, the judges rejected the claim of the new owner on the basis that there was no building contract between them and the seller.
The court also judged that the damage did not compromise the solidity of the property or render it unfit for its intended purpose. In other words, that it was not sufficiently serious.
The buyers appealed the decision, when the Cour de Cassation not surprisingly found that the lower court had erred in declaring the seller was not liable, stating “that being deemed to be a builder, a person who sells, after completion, a construction that they have built or had built, is liable for fault", in the event of faulty workmanship.
As to the seriousness of the defect, the judges similarly drew a different conclusion to that of the Court of Appeal, using jurisprudence in relation to ‘intermediate’ defects, ie, those which were not covered by the provisions of the 10-year guarantee covering structural performance.
The law on this point is called the garantie des vices intermédiaires and is drawn from a clause in the Civil Code which states: “The debtor is ordered, if necessary, to pay damages, either for non-performance of the obligation or for delay in performance, whenever he does not prove that the non-performance stems from an external cause which cannot be attributed to him, even if there is no bad faith on his part.”
Such a clause can apply, provided the defect occurred within the 10-year period and that the owner was responsible.
