Disputed Expert Report: The Court Can Set Aside an Incorrect Opinion to Determine Building Defects

Reference decision: Court of Cassation, No. 97-17.107, 2 November 1999 • View the decision →

You entrusted the construction of your house to a builder. A few months after acceptance, cracks appear, leaks occur. You obtain an expert report listing defects (construction defects) and estimating repairs at €18,000. But the builder produces another, older report, which did not mention these issues. Whom to believe? This was the thorny question that the Court of Cassation, sitting in Paris, answered on 2 November 1999. Decision No. 97-17.107 lays down a clear principle: the trial judge (the court hearing the case) is never bound by an expert's findings. The judge can challenge its contents, especially when inconsistencies are glaring.

For a property owner or a prospective buyer, this power of the judge is a real breath of fresh air. It means that even when faced with an unfavourable report, the aggrieved party can hope for a fair outcome. But one must understand the conditions under which the judge sets aside a technical opinion. What happened in that 1999 case? And how can you benefit from this solution for your own disputes?

📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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Practical use cases

Property owner faced with cracks after works

You had your Parisian apartment renovated. Six months later, cracks run across the living room partition. A first expert saw nothing, but a second confirms a structural defect. The builder refuses to intervene.

Practical application:

As the Court of Cassation has ruled, the court may rely on the second report if it is more comprehensive. Gather all quotes, invoices and have a bailiff's report drawn up. Do not wait for the expiry of warranty periods to apply to the interim relief judge to obtain a court-appointed expert.

Co-ownership syndicate faced with latent defects

In a Paris residence, the syndicate discovers roof leaks. Three expert reports follow: the first played down the problem, the second pointed to a waterproofing defect, the third excludes any liability of the builder. The managing agent no longer knows which way to turn.

Practical application:

The 1999 decision reiterates that the trial judge has sovereign discretion to assess inconsistencies between experts. The syndicate may therefore ask the court to disregard reports that are too brief and to rely on the one that best describes the issues. A collective action by the co-owners often allows the costs of a private counter-expertise to be shared.

Buyer of an old house with a disputed extension

You buy a house in Paris with a conservatory built by the seller. After the sale, you learn that it does not comply with planning regulations and has leaks. The seller gives you an expert report dating from before the sale, concluding there are no defects.

Practical application:

You can challenge this report in court by providing a new, more recent and more detailed expert report. The case law allows you to do so. Your action could be based on fraud if the seller deliberately concealed the problems, or on the guarantee against latent defects (Article 1641 of the Civil Code). A prompt consultation with a lawyer will enable you to assess your chances of success.

Disputed Expert Report: The Court Can Set Aside an Incorrect Opinion to Determine Building Defects

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Practical use cases

Property owner faced with cracks after works

Co-ownership syndicate faced with latent defects

Buyer of an old house with a disputed extension

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Maître Zakine, Doctor of Law