All about ten-year liability.
The law of January 4, 1978, known as the Spinetta law, instituted the principle of the presumption of liability borne by builders in the event of damage affecting the work on which they intervened. It is the ten-year responsibility.
What is the ten-year liability?
The law of January 4, 1978 therefore established a principle of public order aimed at protecting the user and the consumer: thus, the builders are presumed liable for damage affecting the constructed work occurring within 10 years of the acceptance of the work. This principle of presumption, enshrined in the Civil Code, is a provision of public order. The builder can only be exonerated from liability by proving that there has been an extraneous cause, force majeure, act of a third party or fault of the contracting authority.
This presumption weighs on builders directly linked to the project owner by a contract of leasing of work and applies to “serious” disorders which appear within 10 years from the acceptance of the works.
But what do we mean by “serious” disorders?
These are the damages which compromise the solidity of the work or which render it unfit for its intended purpose (that is to say that the work becomes unsuitable for what it was intended for).
The principle of presumption of responsibility also extends to the disorders affecting the elements of equipment inseparable from the works of viability, foundation, framework, enclosure or cover, insofar as these disorders appear within 10 years after the reception. of the work.
Who are the persons subject to ten-year liability?
The presumption of ten-year liability weighs on manufacturers. So what do we mean by constructors? According to article 1792-1 of the Civil Code, the following are deemed to be constructors of the works: – any architect, contractor, technician or other person linked to the client by a contract for the hiring of works;
– any person who sells, after completion, a work that he has built or had built;
– any person who, although acting as an agent of the owner of the structure, accomplishes a mission comparable to that of a lessor of a structure.
In concrete terms, all construction professionals are concerned by ten-year liability when they are lessors of works: craftsmen and construction companies, construction engineering companies, construction economists, technical inspectors, design offices, architects, manufacturers, non-executive builders such as builders of individual houses, property developers or developers.
As subcontractors are not directly linked to the client, they are not subject to the presumption of ten-year liability. They nevertheless remain contractually liable to the builder who has entrusted them with a task.
What is the ten-year insurance? Is it mandatory?
The Spinetta law, by laying down the principle of the presumption of liability of the builder, imposed at the same time the subscription by the builder of compulsory insurance covering the costs of repairing material damage affecting the work that he carried out (or designed ), as long as they appeared within 10 years of receiving the work. This guarantee therefore covers damage of a ten-year nature, which are as a reminder:
– those that affect the solidity of the structure,
– those who make the work unsuitable for its intended purpose,
– those which affect the solidity of the elements of equipment inseparable from the construction.
The law imposing the subscription of the decennial insurance, this one is thus obligatory. Thus, when the professional, whatever his profession, participates in the construction of a work subject to the ten-year insurance obligation (building work), he must be insured for his ten-year liability, whether he intervenes for new work or work on existing structures (renovation or extension work, for example).
Are penalties provided for in the event of a lack of insurance?
Lack of ten-year insurance is liable to criminal penalties: penalties of up to 3 years’ imprisonment and a fine of 45,000 euros. These maximum penalties are not always retained, but case law shows that the courts can pronounce heavy penalties against uninsured professionals, such as reimbursement of the cost of disorders.
Are all structures subject to the ten-year insurance obligation?
The ordinance of June 8, 2005 shed important light on the concept of works submitted and works not submitted, by specifying that all construction works are concerned by the ten-year insurance obligation, with the exception of a list of works not subject to the ten-year insurance obligation and which are listed in article L243-1-1 of the Insurance Code. A structure not listed in article L243-1-1 of the Insurance Code can therefore be considered to be subject to the ten-year insurance obligation.
What are the non-submitted works?
There are works that are always excluded: these are maritime, lake, river works, road, port, airport, heliport, rail infrastructure works, works for the treatment of urban waste, industrial waste and effluents, as well as the elements of equipment of one or other of these works.
There are works excluded, unless they are ancillary to a work subject to the ten-year insurance obligation: these are roads, pedestrian works, car parks, various networks, pipes, lines or cables. and their supports, works for the transport, production, storage and distribution of energy, works for the storage and treatment of bulk solids, fluids and liquids, telecommunications works, sports works not covered as well as their pieces of equipment.
Finally, structures existing before the start of construction are excluded, with the exception of those which, fully incorporated into the new structure, become technically indivisible.
Thus, for example, the construction of a municipal tennis court is not subject to the insurance obligation. On the other hand, the construction of a tennis court included in a hotel complex will be subject to the insurance obligation.
Private VRD works for a house or an apartment building are subject to the obligation of ten-year insurance.
How to choose your ten-year insurance?
You have to be careful not to choose your ten-year insurance solely on the basis of its cost. First of all, the cost of insurance is variable since it depends on several criteria such as the risk insured, the size of the company (workforce and turnover), the nature of the site insured, the professional experience and the qualifications of the company, its previous loss experience and of course the profession exercised by the professional, which is one of the main criteria.
Another very important criterion which can vary the price of insurance is the extent of the guarantees. It is imperative to check the nature of the guarantees, the amount and the limits of the guarantees, the amounts of deductible, the exclusions.
The choice of the insurer, here again, is important and the latter must be financially sound to be able to meet its commitments, especially on so-called “long” risks such as ten-year liability insurance. The insurer must also provide a real service to its policyholders: listening, analysis of needs, advice on the guarantees best suited to needs, management and settlement of claims.
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