Prescription of Actions in Co-ownership: Does an Interim Injunction Application Interrupt the Limitation Period?

Imagine: you own a flat in Moissac, in a co-ownership built in 1985. As early as 1987, cracks appear on the facade. The syndic (the legal representative of the co-ownership) applies for an interim injunction (urgent procedure) against the construction company. Years pass, other defects arise: water ingress, waterproofing failures. In 1996, the general meeting of co-owners finally authorises legal action. But the contractor raises the ten-year limitation period (10-year time limit to sue after completion of works). Too late, he says. Really?

The question every owner asks: when the syndic applies for an interim injunction, does that suffice to "stop the clock" on the limitation period for all defects? The answer from the Court of Cassation on 7 July 1999 (No. 97-15.419) is a textbook case for co-ownerships.

This decision clarifies a crucial point: interim injunction applications, even successive ones, interrupt the limitation period for the defects they mention. And crucially, the general meeting can ratify these actions retroactively, even beyond the 10-year period, as long as the limitation period has not expired due to the interruptions. In other words, a syndic who acts quickly can save the co-ownership's rights.

The Facts: a story that happens every day

In 1984, a co-ownership in Moissac (Tarn-et-Garonne) completed construction works. Very quickly, defects (construction problems) appear. The syndic, Mr X, acts: in 1987, he applies for an interim injunction against the main contractor for cracks. In 1989, a new interim injunction application against another party for water ingress. In 1991, yet another application for waterproofing defects. Each time, the syndic acts without prior authorisation from the general meeting (GM) of co-owners — a formal irregularity.

In 1994, the syndic brings a substantive claim (ordinary procedure) against the builders. The GM in 1996 retroactively authorises all these actions. The builders challenge this: according to them, the claim is inadmissible because the syndic had no authorisation in 1994, and above all, the ten-year limitation period (10 years from completion) had expired in 1994, i.e., 10 years after 1984.

The Court of Appeal rules in favour of the co-owners' association. The builders appeal to the Court of Cassation. The Court of Cassation dismisses their appeal: it confirms that the interim injunction applications of 1987, 1989 and 1991 interrupted the limitation period for the listed defects, and that the 1996 GM validly ratified the actions. Thus, the 1994 claim was admissible because the limitation period had not expired, thanks to the successive interruptions.

The Court's Reasoning — Analysed

The Court of Cassation relies on two legal pillars: on the one hand, Article 2244 of the Civil Code (in its then applicable version) which provides that a summons to court, even in interim proceedings, interrupts the limitation period. On the other hand, the rule that the syndic cannot sue without authorisation from the GM, but this authorisation can be given retroactively, provided that the action was brought within the limitation period.

In clear terms, the judges considered that each interim injunction application "reset" the ten-year limitation period for the defects it described. Thus, after the 1987 application, the 10-year period started anew for the cracks. Then in 1989, a new interruption for the water ingress, etc. Result: in 1994, the period had not elapsed because the last interruption was in 1991, less than 10 years earlier.

The builders argued that the syndic had no power to apply without a mandate from the GM. The Court responds: that does not matter, because the GM subsequently ratified the actions. In other words, the syndic's action was "savable" by a subsequent ratification (approval). However, note: this ratification cannot cover an action that would already be time-barred at the time the GM deliberates. But here, thanks to the interruptions, the limitation period had not expired.

What few people know is that this solution has been consistent since a famous decision of 1993 (Civ. 3e, 10 March 1993). The Court of Cassation ensures the protection of co-owners against forfeiture (loss of the right to sue) when the syndic has acted urgently, even without authorisation.

What This Changes for You — Practically

For the co-owner: this decision is a lifeline. If your syndic has applied for interim injunctions against builders for defects without waiting for the GM, do not panic: the GM can ratify later, even after 10 years, as long as the applications interrupted the limitation period. Concrete example: in Castelsarrasin, a co-ownership of 30 units discovered water ingress in the car parks in 2018. The syndic had applied for an interim injunction in 2010 for cracks, but without authorisation. In 2022, the GM authorises the substantive claim. Thanks to this case law, the claim is admissible because the 2010 application interrupted the limitation period.

For the landlord owner: if you rent out your property, defects affecting common areas can impact the rental value. This decision allows you to rely on the syndic to act without waiting for the GM in an emergency. But check that the syndic specifically mentions the defects in the application: an overly vague application would not cover all defects.

For the tenant: you are not directly concerned, but you can report defects to the syndic. If the syndic does not act, you can ask the landlord to contact the syndic. Since the limitation period is interrupted by the syndic's actions, your rights to decent housing are better protected.

If you are in this situation, you should: 1) Keep the interim injunction applications; 2) Check that they describe the defects correctly; 3) Have a ratification GM vote as soon as possible; 4) Bring the substantive claim within 10 years of the last interruption.

Four Tips to Avoid This Type of Dispute

• Get prior authorisation as soon as possible: even if the syndic can act in an emergency, a GM authorisation before any application avoids challenges. In practice, convene an extraordinary GM within 6 months of the defects appearing.
• Draft precise applications: each defect must be described accurately (location, date of appearance, nature). An overly general application may not interrupt the limitation period for all defects. Example: "cracks on the north gable wall" rather than "various defects".
• Keep all documents: applications, GM minutes, expert reports. These documents prove the interruption of the limitation period. Without them, the builder may contest.
• Do not delay bringing the substantive claim: the interruption of the limitation period does not last indefinitely. Once the interim injunction application is served, you have until the end of the initial period (10 years) to bring the substantive claim. If you wait too long, the limitation period may apply.

Further Reading: Related Case Law and Developments

This decision is part of a protective line for co-owners. Already in 1993, the Court of Cassation ruled that an interim injunction application interrupts the ten-year limitation period (Civ. 3e, 10 March 1993, No. 91-11.912). And in 1998, it specified that GM authorisation can be given after the application (Civ. 3e, 4 March 1998, No. 96-13.264). The trend is clear: courts favour the effectiveness of co-owners' right to sue.

Since 1999, the law has evolved. The ten-year limitation period was confirmed by the Spinetta law of 1978 (law on builders' liability). More recently, the ordinance of 10 February 2016 unified limitation periods in civil law, but the ten-year limitation period in construction remains specific. This means this decision remains fully relevant for co-ownerships built before 2016, and for defects appearing after.

In Practice: What to Do

FAQ

1. What if my syndic applied for an interim injunction without GM authorisation?
Convene a GM to ratify the action. If the GM refuses, the syndic may be disavowed, but the application remains valid to interrupt the limitation period. The substantive claim must then be brought quickly.

2. Can I act alone as a co-owner if the syndic does nothing?
Yes, but only for defects affecting your private parts or your enjoyment. For common parts, only the co-owners' association can sue, unless you obtain a judicial authorisation (court permission).

3. What is the cost of an interim injunction application?
Expect between €500 and €1,500 in lawyer's fees, plus service costs (about €100). This is a modest investment compared to the cost of repairs (often tens of thousands of euros).

4. Is the limitation period interrupted for all defects if the application is vague?
No. Only defects stated in the application are covered. Hence the importance of listing them precisely. When in doubt, it is better to multiply the applications.

5. Can I still sue if the ten-year limitation period has expired?
If no interruption occurred, no. But if the builder committed a fraudulent fault (intentional), the limitation period is 20 years. Consult a lawyer to analyse your situation.

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