Building Warranties Against Latent Defects
Thursday 01 December 2011
All building work in France comes with a warranty against latent defects, but you would be better advised to put your faith in a good builder.
Under French civil law all building work is guaranteed for up to 10 years, as is the case in many other European countries.
It does not matter that the builder carries no insurance policy for building defects; the responsibility of the builder is engaged through statute law, which has its origins in the Loi Spinetta.
However, the warranty does not cover all work for the whole of the 10 year period.
Thus, in the first year, while you will have a comprehensive guarantee, in later years it only covers major defects.
Specifically, the ten year guarantee operates as follows:
- Year 1 - The builder is obligated to guarantee complete performance of the work – la garantie de parfait achèvement.
- Years 1-2 - Guarantee that fittings are in good working order – la garantie de bon fonctionnement.
- Years 1-10 - Guarantee that all those works concerned with the stability and integrity of the building, including those elements which ensure the building is wind and watertight – la responsabilité décennale.
Ten Year Insurance
There is a great deal of confusion concerning the ten-year building warranty, and the various other insurances and warranties that exist.
In fact, although all builders are obliged by law to take out ten year building insurance (called l'assurance décennale) many smaller builders do not so, primarily because of the cost.
So although you have legal protection, if the builder has no insurance policy in place you may well have greater difficulty in enforcing the guarantee.
This is why it is important to distinguish between la responsabilité décennale and l'assurance décennale; the builder may have a legal responsibility, but they may not necessarily have an insurance policy to cover it.
And even if they hold such a policy it may not properly cover the full extent of their legal resonsibilities. The small print of some policies may make the best use of the discretion that is available under statute law.
Third Party Insurance
Remember also that 'l'assurance décennale' is not 'l'assurance responsabilité civile professionnelle'; the latter is the third party public liability cover that a builder will (should!) hold. So do not be persuaded by the builder who hands over to you a copy of their public liability insurance policy that this is their ten-year cover.
It is also important to distinguish the builder's warranty from the same warranty that must also be offered by an architect (who must also carry an insurance policy), and other contractual or manufacturing guarantees that may be offered, such as those for materials or fittings.
To complete the confusion, for major building works, clients are also required to take out their own ten year building defects policy.
This insurance is called l'assurance dommages-ouvrage, which effectively acts as an insurance policy against the potential unwillingness of the builder's insurer to pay out!
Once again, however, few clients take out such a policy, either because they did not know about it or because of the cost, normally betweeen 2% and 5% of the cost of the works.
The point about l'assurance dommages-ouvrage is that, not unsurprisingly, it is not unusual for the builder or their insurer to contest their liability and in the absence of your own policy you could be engaged in a legal battle for years trying to resolve the dispute.
This article was featured in our Newsletter dated 01/12/2011