Damage-to-Works Insurance: Is Your Claim Too Late?

Imagine: you are the owner of a flat in Voiron, purchased in 2002. In 2010, cracks appear on the facade. You contact your damage-to-works insurer, who tells you that your claim is too late. Incomprehension? Yet the Court of Cassation has ruled: after a period of two years following the end of the decennial liability, the insurer is no longer obliged to respond. But what exactly does this change? And how can you avoid finding yourself in this situation?

This decision of 20 June 2012 (no. 11-15.199) clarifies a crucial point of construction law: the starting point of the time limit for taking action against the damage-to-works insurer. For non-lawyers, this is a real puzzle. Yet understanding these mechanisms is essential to avoid losing the benefit of your insurance. In this article, I explain everything, with concrete examples from my practice in Grenoble and Isère.

So, what does this decision actually say? It says that the damage-to-works insurer does not have to respond to a claim made more than two years after the expiry of the decennial liability. In clear terms, if you discover a defect (latent defect, poor workmanship) after this time limit, you can no longer turn against the insurer. But be careful, it all depends on the date of the claim and the knowledge of the damage. Let's discover this in detail.

The facts: a story that happens every day

The case begins in a co-ownership, probably in the Grenoble region – a building constructed in the 1990s. The syndicate of co-owners (all the owners of the lots) discovers defects (construction faults) in the common parts. Cracks, water infiltration? The judgment does not specify, but they are defects covered by the decennial liability (which covers for ten years damages that compromise the solidity of the structure or render it unfit for its purpose).

The syndicate decides to sue the damage-to-works (DO) insurer – this compulsory insurance taken out by the project owner before the start of works, which pre-finances repairs without waiting for the determination of liability. The proceedings were initiated on 30 September 2005. But the building was completed (handed over) in 1995. The decennial liability therefore expired in 2005, ten years after completion. However, the claim was made after the expiry of this liability, and more importantly, more than two years after that expiry.

The DO insurer raises the defence of time-bar (loss of the right to take legal action): according to him, the syndicate acted too late. The syndicate retorts that the action is not late, because the two-year period runs from the discovery of the damage, not from the end of the decennial liability. Who is right? The court rules in favour of the insurer at first instance. The Grenoble Court of Appeal reverses this judgment, holding that the action is admissible. The insurer appeals to the Court of Cassation.

The reasoning of the court — broken down

The Court of Cassation quashes the judgment of the Court of Appeal. Its reasoning is simple and inexorable: Article 1792-4-2 of the Civil Code (which sets the two-year period from completion to sue the DO insurer) must be combined with Article 1792-4-3 (which provides that actions under the decennial liability are time-barred after ten years from completion). In other words, the time limit for suing the DO insurer cannot exceed the time limit for the decennial liability, plus two years.

In clear terms: you have ten years from completion to report a loss under the decennial liability. Once these ten years have elapsed, you still have two years to sue the DO insurer. After this total period of twelve years, the insurer can refuse your claim. What few people know is that this two-year period is a limitation period (a final deadline that cannot be interrupted or suspended), unlike a prescription period (which can be interrupted by an act).

In this case, the building was completed in 1995. The decennial liability expired in 2005. The syndicate sued the insurer on 30 September 2005, i.e. within two years after the expiry. But the Court of Cassation held that the starting point of the two-year period was the date of expiry of the decennial liability, not the date of discovery of the damage. However, the syndicate had not shown that the damage had been discovered before the expiry of the decennial liability. The action was therefore considered late.

However, be careful: if the damage is discovered before the end of the decennial liability, the two-year period runs from that discovery. But in the opposite case, the two-year period runs from the expiry of the decennial liability. In other words, you must be very vigilant about the date of completion of the works and the date of manifestation of the defect.

What this means for you — concretely

For a landlord owner in Fontaine, who bought an investment property in 2003: if cracks appear in 2016, i.e. thirteen years after completion, you will not be able to sue the DO insurer. On the other hand, you may be able to take action against the builder on the basis of the decennial liability, if you can show that the defect existed before its expiry and that you discovered it afterwards (but this is difficult).

For a buyer of a flat in a co-ownership: if you buy a property in 2020, and latent defects appear in 2025, check the completion date of the building. If it dates back to 2012, the decennial liability expired in 2022. You have until 2024 to sue the DO insurer. After that, it's too late.

For a co-owner: if the syndicate takes action against the DO insurer, it must do so within the time limits. undefined, I have come across cases where the syndic waited too long, thinking that the time limit ran from the discovery of the damage. Result: the action was declared inadmissible, and the co-owners had to finance the repairs out of their own pockets.

If you are in this situation, you must: 1) Check the date of completion of the works (notarial deed or completion certificate). 2) Determine the date of discovery of the defect. 3) Act quickly: never wait more than two years after the expiry of the decennial liability.

Four tips to avoid this type of dispute

• Keep the completion certificate safe. This is the document that sets all deadlines running. Without it, you cannot prove the start date of the decennial liability.
• Report any loss immediately to your DO insurer, even if the defect seems minor. A proper declaration interrupts the limitation period.
• Do not rely on the date of discovery of the damage to extend the deadline. Case law is strict: if the damage is discovered after the expiry of the decennial liability, the two-year period runs from that expiry, unless you can prove that the defect existed before (which is very difficult).
• Consult a lawyer lawyer as soon as the first signs appear. A professional can assess the deadlines and take the necessary action without delay. The cost of a consultation is negligible compared to the amount of work not covered.

Further details: related case law and developments

This decision is part of a series of judgments by the Court of Cassation aimed at securing deadlines in construction matters. Already in 2008 (Civ. 3rd, 12 November 2008, no. 07-17.050), the Court had held that the two-year period in Article 1792-4-2 is a limitation period, not capable of being interrupted. More recently, in 2020 (Civ. 3rd, 5 March 2020, no. 18-26.298), it specified that this period runs from completion, even if the damage becomes apparent later.

The trend is therefore clear: judges protect insurers against late claims, sometimes to the detriment of owners. What this means for the future: you must be even more rigorous in managing losses. Never wait, and above all, do not rely on a simple declaration to the builder: only the act of issuing a claim form against the builder or a declaration to the DO insurer interrupts the time limit.

Summary and next steps

FAQ:

1. What is the time limit for suing the damage-to-works insurer? You have two years from the expiry of the decennial liability (i.e. 12 years after completion) or two years from the discovery of the damage if it occurs before the expiry of the decennial liability.

2. Can I still take action if the time limit has passed? No, the limitation period is a final deadline: once it has passed, you definitively lose your right to act, unless you can prove fraud by the insurer (extremely rare).

3. What should I do if I discover a defect after 12 years? You will not be able to sue the DO insurer. However, you can try an action against the seller for latent defects (2-year time limit from discovery) or against the builder if you can prove gross negligence (but this is difficult).

4. How do I calculate the completion date? This is the date on which the works are considered completed, generally mentioned in a completion certificate signed by the project owner and the contractor. Failing that, the delivery date may be used.

Checklist: 1. Find the completion date. 2. Note the date of discovery of the defect. 3. If the defect appeared before the end of the decennial liability, act within 2 years. 4. If the defect appeared after, act within 2 years following the expiry of the decennial liability. 5. If in doubt, consult a lawyer.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →