A French court has declared void a contract that sought to limit the 10-year defects liability of the builder in the construction of a swimming pool.
Under French civil law all building work is guaranteed for up to 10 years, as is the case in other European countries.
In France, this 10-year latent defects guarantee is known as la garantie responsabilité civile décennale.
However, the guarantee does not cover all work for the whole of the 10 year period.
Whilst in the first two years it provides a comprehensive guarantee, in later years it only covers major defects.
In order to improve the enforceability of the law building professionals are required to take an an insurance policy that covers their liability arising under the law.
This policy is called l'assurance décennale.
In a recent case in the French courts a couple brought an action against their builder over defects in the construction of their swimming pool.
Specifically, the reconstituted stone finish on the concrete walls of the pool had been carried out incorrectly, leaving the surface rough, when it should have had a smooth marble finish.
The builder had taken out an insurance policy to cover his guarantee, but the policy was limited to defects affecting the solidity of the structure of the pool and consequential defects.
The court of appeal considered that although the finish on the walls of the pool made it unsuitable for proper use it was not a structural element as specified in the policy, so no liability under the 10-year guarantee arose to the builder.
The owners appealed this judgement to the French Supreme Court, the Cour de Cassation, who over-ruled the lower court, stating that by restricting the insurance cover to the solidity of the pool the policy fell short of the requirements of statute law.
In particular, the code des assurance states that the 10-year guarantee also applied where the defect rendered the property incapable of proper use - 'impropre à sa destination'.
As a result, any insurance policy to cover the liability in statute law must have, at least, equivalent clauses covering these risks.
Accordingly, as the owners were unable to make proper use of their pool due to the rough finish on the walls, the builder was held liable for the defect and the insurance company obliged to pay damages.