Latent Defects and Limitation Periods: the French Supreme Court Protects Builders in 2023

You have just bought a house in Lourdes. Everything seems perfect, until one day a crack appears in the load-bearing wall. You contact the builder, who tells you: 'It's not my fault, it's a defect in the material supplied by my supplier.' But who pays? And above all, how long do you have to take action? I hear these questions almost every week in my practice in Grasse. The decision of the French Supreme Court of 8 February 2023 (No. 21-20.271) provides a crucial answer, particularly for sales concluded before the law of 17 June 2008. Analysis.

The facts: a story like any other

Mr and Mrs Dupont (fictitious names) entrust the construction of their villa in Lourdes to a contractor, the company BâtirPlus. A few years after the completion of the works, defects appear: tiles break, the roof leaks. The expert report reveals that the tiles, supplied by a manufacturer, had a latent defect (a defect not apparent at the time of sale). The owners sue the builder in court. The builder, in turn, brings a third-party claim (claim for reimbursement) against its supplier and the manufacturer. But a problem arises: the initial sale of the tiles dates back to 2005, i.e. before the 2008 limitation reform. Did the builder act too late? The Court of Appeal of Pau said yes, considering that the two-year limitation period (time limit to bring legal proceedings) ran from the 2005 sale. The French Supreme Court quashes this judgment: no, the builder could not have taken action before being sued itself. The starting point of the limitation period is therefore the date of its being sued by the project owner.

The reasoning of the court — broken down

The judges of the Quai de l'Horloge apply here a principle of fairness: one cannot require a person to take legal action before knowing that they are themselves being pursued. In other words, the builder cannot anticipate its client's claim. The Court relies on Article 1648, first paragraph, of the Civil Code (which requires action for latent defects to be brought within a 'short time') and Article L. 110-4 of the Commercial Code (ten-year limitation period for traders). But it innovates by specifying that, for sales prior to the law of 17 June 2008, the limitation period for the recourse action (claim between professionals) is suspended until the builder's liability is sought. This is not a reversal, but a confirmation of previous case law (3rd Civ., 16 February 2022, No. 20-19.047). The Court rejects the seller's argument that the builder should have acted from the initial sale: 'It cannot act before being sued,' it rules. This solution protects the right of access to court, guaranteed by the European Convention on Human Rights.

What this changes for you — concretely

For an owner like Mr Dupont in Lourdes: you can sue the builder even if the defect is old, without fear that the builder will turn against you if its claim is time-barred. For a builder: you now have the certainty that your action against the supplier will not be rejected because the time limit is too long, provided you act quickly after being sued yourself. Example: in Orthez, a contractor was sued in 2022 for defects on a roof installed in 2007. He was able to bring a third-party claim against his supplier in 2023, because the limitation period was suspended until 2022. Note however: this suspension only applies to sales prior to 2008. For later sales, the limitation period is two years from the discovery of the defect (2008 law). What few people know: if you are an owner, you must act quickly after discovering the defect, otherwise you lose your rights. But the builder can still turn against its supplier even years later.

Four tips to avoid this type of dispute

• Have materials inspected before purchase: before signing a construction contract, require samples and technical data sheets. A laboratory test can reveal a hidden defect.
• Keep all documents: invoices, purchase orders, correspondence. In the event of a dispute, they will be your best evidence to date the sale and the defect.
• Do not wait to act: as soon as you notice a defect, consult a lawyer. Even if the builder can turn against its supplier, your own action must be brought within two years of discovery.
• Prefer insured builders: decennial insurance guarantees you compensation even if the builder is insolvent. Check the certificates before signing.
• Mention the defect in the deed of sale: if you resell the property, declare known defects to avoid being sued for latent defects.

Further reading: related case law and developments

The decision of 8 February 2023 is part of a protective line for builders. In a judgment of 16 February 2022 (No. 20-19.047), the Court had already held that the limitation period of Article L. 110-4 of the Commercial Code was suspended until the builder was sued. In 2021, the same chamber specified that the direct action of the project owner against the manufacturer was not subject to the two-year limitation period (Civ. 3e, 24 March 2021, No. 20-14.838). The trend is clear: judges favour the effectiveness of remedies over rigid time limits. For the future, it can be expected that the Court will extend this reasoning to sales after 2008, in the case of a chain of contracts.

In practice: what to do

Practical FAQ:

• I bought a house in 2006, a defect appears in 2023. Can I take action? Yes, against the builder, and the builder can turn against its supplier thanks to this decision.
• What is the time limit to sue the builder? Two years from the discovery of the defect, but for sales prior to 2008, the starting point is the date of the lawsuit.
• What if the builder is insolvent? Check its decennial insurance. You can also sue the manufacturer directly on the basis of latent defect warranty.
• Can I still take action if I have sold the property? Yes, if the defect was discovered before the sale and you concealed it, the buyer can sue you.
• How much does a procedure cost? Count between €2,000 and €5,000 for a lawyer, plus expert fees (€1,500 to €3,000). The stake often justifies these costs.

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