Demolition Works: A Qualification as Building Works That Changes Everything for Subcontractors

Imagine: you are the owner of a building in Montargis. You entrust the demolition of a load-bearing wall to a contractor. He subcontracts the work to a demolition company. You pay the main contractor, but he does not pay his subcontractor. Who is responsible? Until this decision, the answer was unclear. The Court of Cassation has clarified: demolition works are "building works" within the meaning of the Act of 31 December 1975. This means that the subcontractor can demand to be paid directly by you, the project owner, if the main contractor defaults. A quiet revolution that protects local craftsmen, but imposes increased vigilance on owners.

You may wonder: "How does this concern me, who simply wants to raze an old garage in Orléans to build an extension?" The answer is simple: every time you engage a contractor, you must know whether he subcontracts part of the works. If so, check that the subcontractor has been approved and that his payment terms have been accepted. Otherwise, you could pay twice. This decision of 24 September 2014 (appeal no. 13-14.404) reminds us that demolition is not a simple "destruction" without rules: it is an act of construction, subject to the same protections.

So, what did the Court of Cassation actually say? And above all, how to avoid finding yourself in a situation where your site turns into a legal nightmare? Analysis with concrete examples, practical advice and a review of case law.

The facts: a story that happens every day

Mr X, owner in Orléans, wishes to renovate an old building. He entrusts the company "Démolition Express" with demolishing part of the interior walls. The main contractor, "Démolition Express", subcontracts part of the work to a small company, "Les Démolisseurs Associés", without informing Mr X. The works are carried out, but "Démolition Express" does not pay its subcontractor. The latter, unpaid, turns against Mr X, the project owner, invoking the 1975 law which allows the subcontractor to be paid directly by the project owner if the main contractor is in default.

But Mr X refuses: "I never accepted this subcontractor, I did not approve him, and besides, demolition is not building work!" The subcontractor sues Mr X in court. The court of first instance rules in favour of the subcontractor, holding that demolition is indeed building work. Mr X appeals. The Orléans Court of Appeal, seised of the matter, sets aside the judgment: for it, demolition is not building work, because it does not consist of building, but of destroying. The subcontractor is therefore not protected by the law.

The subcontractor appeals to the Court of Cassation. The Court of Cassation, in its judgment of 24 September 2014, quashes the judgment of the Court of Appeal. It states that demolition works have the legal nature of "building works" within the meaning of Article 14-1 of the Act of 31 December 1975. Demolition often prepares or accompanies construction, it is an integral part of the building process. The subcontractor can therefore benefit from the direct action against the project owner. The case is referred back to the Bourges Court of Appeal.

The reasoning of the court — dissected

The central legal question was: are demolition works "building works" within the meaning of Act no. 75-1334 of 31 December 1975 relating to subcontracting? Article 14-1 of this Act provides that "the contractor who intends to perform a contract or a contract as a subcontractor must, at the time of conclusion and throughout the duration of the contract or contract, have each subcontractor approved by the project owner and accept the payment terms of each subcontract." If these formalities are not complied with, the subcontractor may nevertheless take direct action against the project owner if the works fall within the scope of the Act, namely "building works".

The Orléans Court of Appeal had held that demolition was not building work, because it does not aim to erect or modify a building, but to destroy it. It relied on a strict interpretation: building means construction, not destruction.

The Court of Cassation adopted a broad and functional interpretation. It held that demolition works are "building works" because they contribute to the construction, rehabilitation or demolition-rebuilding operation. In practice, demolition is often the first act of a construction site: you demolish to rebuild. The Court therefore held that the qualification of "building works" is required, regardless of whether the act is destructive or constructive.

The judges also stressed that the 1975 Act aims to protect subcontractors, often local SMEs, against defaults by the main contractor. Excluding demolition would deprive these craftsmen of essential protection. The decision is therefore teleological: it interprets the law according to its purpose.

This decision is not a reversal, but a clarification. The Court of Cassation had already, in a judgment of 17 March 2010 (no. 08-21.771), qualified demolition works as "building works", but incidentally. Here, it does so explicitly and with reasons. Since then, case law is consistent: any demolition operation, whether partial or total, falls within the scope of the 1975 Act.

What this changes for you — concretely

For the owner (project owner): You must be vigilant. If you engage a contractor to demolish a wall, a garage, or even an entire house, and he subcontracts all or part of it, you risk having to pay the subcontractor if the main contractor does not. Example with figures: in Orléans, the demolition of an individual house costs between €8,000 and €15,000. If the main contractor subcontracts to a demolition company for €6,000 and does not pay it, the subcontractor can claim this sum from you. You will then have to pay twice: once to the main contractor (already done) and once to the subcontractor. Solution: require your contractor to present his subcontractors to you before the start of the works, and approve them in writing.

For the subcontractor: You are now protected. If you carry out demolition works for a main contractor, you can, if he does not pay you, turn directly against the project owner. However, you must prove that you have been approved (or that the project owner has accepted your terms). If not, you can still invoke the law if the works are completed and the main contractor is in default. The Court of Cassation has held that the absence of approval does not prevent direct action if the subcontractor has been tolerated or if the project owner has benefited from the works.

For the tenant: If you are a tenant and demolition works are carried out in your home (e.g., removing a partition), it is your landlord who is the project owner. You are not directly concerned, but you must check that the landlord has approved the subcontractors to avoid disputes that could delay the site.

For the co-owner: In co-ownership, demolition works (e.g., destruction of a load-bearing wall authorised by the general meeting) are often entrusted to a contractor. The syndic must ensure that subcontractors are approved by the co-ownership council, failing which the co-ownership association may be exposed to double billing.

Four tips to avoid this type of dispute

• 1. Require the list of subcontractors before signing the contract. Ask the main contractor to provide you in writing with the name, address and SIRET number of each subcontractor. Check that these subcontractors are properly insured and qualified. In Montargis, a building craftsman told me that 30% of his sites involved undeclared subcontracting.
• 2. Approve each subcontractor in writing. Send a registered letter with acknowledgement of receipt to the main contractor, accepting the subcontractors and their payment terms. Keep a copy. This will prevent you from being sued directly by a subcontractor you have never seen.
• 3. Check the payment terms. Ensure that the amounts due to the subcontractors are reasonable and proportionate to the main contract. If a subcontractor claims 90% of the total amount, be wary: this may conceal fraud.
• 4. Require a certificate of payment of subcontractors. Before settling the main contractor's account, ask him for a sworn statement certifying that all subcontractors have been paid. You can even include a contractual clause making payment of the balance conditional on the production of this certificate.

Further reading: related case law and developments

The decision of 24 September 2014 is part of a protective trend for subcontractors. Already, in a judgment of 17 March 2010 (no. 08-21.771), the Court of Cassation had qualified partial demolition works as "building works", but without making it a general principle. The 2014 decision generalises the solution. Since then, several Courts of Appeal have applied this qualification: the Paris Court of Appeal, in a judgment of 12 May 2017, held that the demolition of an entire building fell within the 1975 Act. The Versailles Court of Appeal, on 20 June 2018, extended the qualification to asbestos removal works prior to demolition.

On the other hand, the question of whether earthworks or road and utility works are "building works" remains debated. The Court of Cassation, in a judgment of 13 January 2016 (no. 14-25.625), seemed to exclude them, unless they are inseparable from a construction. Each situation must therefore be analysed on a case-by-case basis.

For the future, the trend is towards broadening the notion of "building works" to include all preparatory or ancillary operations to construction. Professionals must therefore anticipate increasing protection for subcontractors, which requires rigorous administrative management.

Key points to remember

FAQ:

1. Can an unapproved subcontractor sue me directly? Yes, if he demonstrates that the works are building works (including demolition) and that the main contractor is in default. The absence of approval is not an absolute obstacle.

2. Must I pay a subcontractor if I have already paid the main contractor? Yes, if the subcontractor exercises the direct action and you have not complied with the approval formalities. You will then be required to pay twice. Hence the importance of checking.

3. What are the time limits for claiming payment? The subcontractor has one year from the acceptance of the works to take action against the project owner (Article 1792-4-3 of the Civil Code). After this period, the action is time-barred.

4. Is an individual who demolishes his garage concerned? Yes, even for an individual. The law applies to all project owners, whether professional or not. So be vigilant even for small works.

5. What should I do if I receive a formal notice from a subcontractor? Contact a lawyer specialising in property law immediately. Do not pay without checking the facts, but do not delay in responding, as the one-year period is running.

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 →