Repair of a Building: the Court of Cassation Upholds Refusal of Total Demolition and Reconstruction

You are the owner of a commercial leasehold in Mandelieu and you discover that the floor is sloping, making access difficult for your customers. You are considering major works, even demolition of the building. But your neighbour, on the other hand, thinks that simpler adjustments are sufficient. What to do when solutions diverge?

This is exactly the question that arose in a case recently decided by the Court of Cassation. An owner had obtained a court order against a builder to repair the defect, but the Court of Appeal refused to order the demolition and total reconstruction of the building, whereas the defect only affected the ground floor. The High Court upheld this decision.

But what does this actually change for you? This decision confirms that the judge may choose the least expensive repair, even if the owner demands more radical works. Explanations.

The facts: a story like many others

Mr X, owner of a building in Antibes, had a commercial leasehold built on the ground floor. But after completion, he noticed that the floor was not level: a slope hindered access and compromised the operation of the premises. He sued the builder for damages. The court-appointed expert proposed two options: either obtain permission from the municipality to adjust the pavement and create a level access, or lower the floor of the premises. But Mr X demanded the demolition and total reconstruction of the building, considering that only this solution would permanently eliminate the defect.

The first instance court partly granted his claim and ordered works. But the Court of Appeal of Aix-en-Provence, seised by the builder, reversed the judgment: it refused to order demolition-reconstruction, considering that the defect only affected the commercial leasehold and that a more limited repair was possible. Mr X appealed to the Court of Cassation.

Before the Court of Cassation, he argued that the Court of Appeal violated the principle of full compensation by refusing to assess the cost of demolition-reconstruction. But the High Court dismissed his appeal, holding that the Court of Appeal had not refused to assess the damage: it had simply, in the exercise of its discretion, considered that total destruction was not necessary.

The reasoning of the court — dissected

The legal basis of this case is Article 1240 of the Civil Code (formerly 1382), which provides that "any act of a person which causes damage to another obliges the person by whose fault it occurred to repair it." In construction law, this means that the builder whose fault caused a defect must compensate the owner to put him back in the position he would have been in had the defect not occurred. This is called the principle of "full compensation".

But attention: full compensation does not mean that the owner can demand any type of works. The judge has sovereign power to assess the methods of repair. In other words, he decides, depending on the circumstances, whether partial remedial works are sufficient or whether demolition-reconstruction is necessary.

In this case, the Court of Appeal considered that the defect (the sloping floor) only affected the commercial leasehold on the ground floor, and not the entire building. However, demolishing and rebuilding the whole building would have been disproportionate to the harm suffered. The court therefore rejected Mr X's claim, but without denying the existence of the damage. In other words, it recognised that there was indeed a defect, but it considered that the requested solution was not the right one.

What few people know is that the judge may also order specific performance (works) or, failing that, damages. Here, the Court of Appeal did not order other works because Mr X had only requested demolition-reconstruction. He could have made a subsidiary claim for another solution, but he did not. The Court of Cassation therefore upheld the reasoning: the judge is not required to grant the owner the repair he demands, as long as another possible method exists.

What this changes for you — practically

For a landlord owner, this decision is a warning: do not make a request for repair that is too radical without providing an alternative. If you demand demolition-reconstruction for a simple access defect, the judge may reject it and award you nothing for lack of a subsidiary claim. Consequence: you leave without compensation and must start a new procedure.

For a commercial tenant, this means that you cannot demand disproportionate works, even if the defect inconveniences you. For example, if the floor of your shop in Antibes is sloping, you will have to accept adjustment works (ramp, lowering of floor) rather than destruction of the building.

For a buyer, be vigilant during surveys. If a defect is detected, ensure that the repair solutions are proportionate. A seller might be tempted to minimise the necessary works, but you can ask for a reduction in price based on the actual cost of reasonable repairs.

undefined, I have encountered cases where owners demanded colossal works for minor defects. Judges are very sensitive to this: they do not like it when someone tries to take advantage of a defect to obtain a reconstruction at the builder's expense. So be reasonable and present several options.

Four tips to avoid this type of dispute

• Have an amicable expert assessment carried out as soon as the defect appears: before taking legal action, instruct a private expert to assess the extent of the necessary works. This will give you an objective basis for negotiation.
• Make alternative claims in your statement of claim: do not limit yourself to a single solution. For example, claim primarily demolition-reconstruction, and subsidiarily partial remedial works or damages.
• Keep all correspondence with the builder: letters, emails, photos and expert reports are essential evidence. If the builder refuses to repair, you will be able to show that he was put on notice.
• Consult a lawyer lawyer before any action: each case is unique. A lawyer will help you choose the most suitable strategy (mediation, court-ordered expert assessment, trial) and assess your chances of success.

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Further reading: related case law and developments

This decision is in line with a consistent trend of the Court of Cassation to leave the trial judges a wide margin of appreciation on the methods of repair. In a decision of 15 May 2013 (No. 12-19.647), the Court had already held that the judge could refuse the demolition of a structure if remedial works were sufficient. Similarly, in a decision of 4 February 2015 (No. 13-27.311), it upheld a decision ordering partial remedial works rather than total reconstruction.

On the other hand, if the defect makes the building uninhabitable or dangerous, courts may order demolition. It is all a question of proportionality. In the future, we can expect judges to be even more demanding as to the necessity of the requested works, especially in a context of rising construction costs.

Key points to remember

FAQ:

1. Can I demand demolition-reconstruction of my building if a defect affects a commercial leasehold?
No, not automatically. The judge may consider that less heavy works are sufficient. You must demonstrate that demolition is the only technically possible solution.

2. What if my builder refuses to repair a defect?
Put him on notice by registered letter, then apply to the court. A court-ordered expert assessment will be ordered to determine the necessary works.

3. What is the time limit to take legal action?
In construction matters, the limitation period is 5 years from the date of completion for apparent defects, and 10 years for serious defects (decennial liability).

4. Can I obtain damages instead of works?
Yes, if the works are impossible or disproportionate. The judge may award you a sum of money corresponding to the cost of reasonable repairs.

5. Do I have to instruct a lawyer?
For proceedings before the judicial court, a lawyer is mandatory. Before the judge for protection disputes (small claims), you can defend yourself alone, but a lawyer is advisable.

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