Jurisprudence immobilière : analyse et conseils pratiques

Practical application:

This 2018 Cour de cassation ruling confirms that a company director who diverts VEFA payment instalments away from their intended construction purpose commits a personal fault (faute détachable) that can expose them individually, beyond the insolvent company's limited assets. Mrs Lefort should have her lawyer request the judicial liquidator's report to trace fund movements, then file a claim against the director personally (not just the company) before the civil or commercial court. She should also check whether the developer held the mandatory GFA (garantie financière d'achèvement), as this guarantee, if valid, is her fastest route to recovering funds or securing completion, independent of any action against the director.

Practical application:

Applying this decision, the subcontractor's lawyer can argue that misusing ring-fenced VEFA receipts to the detriment of creditors constitutes a fault separable from the director's corporate functions, opening a path to sue the director in a personal capacity rather than only lodging a claim in the company's liquidation. Practically, the subcontractor should request the accounting records through the liquidator or via an ordonnance sur requête, document the mismatch between funds received and works paid, and file within the standard five-year civil limitation period. Acting quickly matters, as the director's personal assets may otherwise be dissipated before judgment.

Practical application:

This ruling is a direct warning: even a sole director of a limited company (SARL) can be held personally liable if VEFA funds are used for purposes other than the construction they were paid for, regardless of the company's own insolvency shielding shareholders. The developer should open a segregated account solely for VEFA instalments, keep a clear paper trail matching each payment call to invoiced construction costs, and confirm the GFA is in place with an insurer or bank before signing the first reservation contract. Consulting a real estate lawyer now to set up compliant payment-call procedures is far cheaper than defending a personal liability claim later.