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Conditions under which the project owner may be held liable - Interference

05/06/2015

Conditions under which the project owner may be held liable - Interference
Cass. 3rd Civ., 21 January 2015, no.13-25.268

A real estate trader had executed with a contractor a contract for the construction of the shell work and finishing work of a dwelling house, and reserved for itself the design and performance of the part of the works entitled “dry partitions and cladding of the peripheral walls”. After the sale of the house, the buyers complained about the presence of humidity at the bottom of the partitions and filed a liability suit against the seller and the main contractor.

The Lyon Court of Appeals ordered the main contractor to fully hold the real estate trader free and harmless against any decisions entered against him, on grounds that such trader did not have any recognised competencies in construction matters, did not participate in the shell works project, and was not responsible for supervising and coordinating the contractors.

The Cour de Cassation just upheld the said decision and found that the real estate trader had not interfered in the project or committed any negligence that might have contributed to the crystallisation of the damage alleged by the buyers.

This decision is in line with current case law regarding the causes releasing builders from their liability. The project owner’s tortious interference can release builders from their special liability1; and their general liability2, if two cumulative conditions are satisfied.

First, the relevant conduct must consist in a marked interference in the design or performance of the work. It was found that is not deemed an interference by the project owner the fact that the project owner reserved for himself certain works, such as the casting of a slab, the raising of hollow blocks or the laying of wooden cladding, during the construction of a hangar, if the contractor in charge of the construction agreed without any reservation to be responsible only for the remainder of the works3. The same is true a fortiori if the defects are not attributable to the works that the project owner had reserved for himself4. On the contrary, it was found that an interference had been committed in a case where the project owner had imposed the blueprints of the construction5 and in a case where the project owner had prepared the blueprints and the building permit file or had carried out the earthworks and back filling and supplied the materials.

Also, the alleged interference must have been committed by a project owner generally known as competent. It is not required that the project owner be recognised as competent in construction matters because of his professional activity, provided that his technical competence is indisputable6. Such competence must be proved in each specific case and may not be presumed, even for a property developer7.

In the decision entered on 21 January 2015, these cumulative conditions required to characterise a tortious interference were not satisfied.

Notes
1Cass. 3rd Civ., 14 November 2001, no.99-13.638
2Cass. 3rd Civ., 6 March 2002, no.00-10.358
3 CA Rennes, 4th Ch., 7 May 2003: No.02-00307
4Cass. 3rd Civ., 30 November 2004, no.03-10.497
5 Cass. 3rd Civ., 17 October 1972, no.71-11.847
6Cass. 3rd Civ., 21 December 1982, no.81-16.289
7 Cass. 3rd Civ., 21 February 1984, no.82-15.337 – CA Paris, 19th Ch. B, 14 June 2001: No.1995-02991

Authors

Picture of Aline Divo
Aline Divo
Partner
Paris
Charlotte Félizot