Future defects may be covered by the builders’ decennial warranty

Article 1792 of the French Civil Code sets forth that any builder is liable to the project owner “for the damage, even when the same results from a defect of the ground, that compromises the stability of the building or that, by affecting it in one of its essential component parts or one of its equipment items renders it unsuitable for its purposes […].”

The defect must exist, be real and certain in order for a project owner to be able to rely on the builders’ decennial warranty. In addition, the damage must meet the seriousness imposed by Article 1792 of the French Civil Code. Furthermore, it must be noted within ten years from acceptance of the works. Indeed, Article 1792-4-1 of the French Civil Code sets forth that “any natural or legal person potentially liable under Articles 1792 to 1792-4 of this Code is released from its liability and warranty obligations under Articles 1792 to 1792-2, after ten years from acceptance of the works or, if Article 1792-3 applies, upon expiration of the time period referred to in the said Article.” Therefore, in order to rely on the decennial warranty, the project owner must file a claim against the builders within 10 years from acceptance of the works.

There is no provision in the French Civil Code regarding defects, which are not serious in the sense of Article 1792 of the French Civil Code upon being noted, but that, could in the future make the property unsuitable for its purpose.

This decision recalls the position of case law towards “future” defects that may be covered by the builders’ decennial warranty.

In the case at hand, two individuals had, in January 2008, entrusted a contractor with the completion of various lifting, carpentry and zinc roofing works in respect of a house. The tacit acceptance of the works had been scheduled for 17 July 2008. As the project owner noted defects in the completion of the works, they sought the appointment of an expert in summary proceedings. The expert issued his report in February 2010.

It appeared from the said report that the defects consisted in large cracks showing the filler that remained in the form of a paste over all of the house’s facades. However, the report concluded that “for the time being, the solidity of the building is not jeopardized, and none of the described defects [...] alters the stability and sustainability of the works; the cracks are not associated with any seepage; however, such type of defect and principally the horizontal cracks will worsen and certainly evolve during the ten-year warranty period, from mere cracks with an unaesthetic appearance to more serious defects with seepage that will limit the intended use of the works.”

Despite the content of this report, the Court of Appeal of Rennes had dismissed the project owners’ claims based on the decennial warranty, on grounds that the defects did not render the building unfit for its intended use and thus did not jeopardize the solidity of the property.

The Cour de cassation quashed this decision by recalling that courts should take into account the judicial expert’s findings according to which the defects would certainly, before the end of the ten-year period, have the seriousness required in order to justify the application of the ten-year warranty within the meaning of Article 1792 of the French Civil Code.

Such decision is in line with the precedents entered by the Cour de cassation according to which any damage that will certainly occur within ten years from acceptance of the works and that is serious enough in the meaning of Article 1792 of the French Civil Code is covered by the builders’ decennial warranty (Cass. 3rd Civ., 3 December 2002, No. 01-13.855; Cass. 3rd Civ., 29 January 2003, No. 00-21.091; Cass. 3rd Civ., 31 March 2005, 03-15.776; Cass. 3rd Civ., 21 October 2009, No. 08-15.136). Such “future” defects should be distinguished from “evolving” defects.

Cass. 3rd Civ., 18  May 2017, No. 16-16.006