Defective workmanship: the client's sequence of remedies, from formal notice to expert appraisal (Art. 145 CPC)

An investor who takes delivery of a renovated office building or a residential programme rarely discovers the defects at the right moment: leaks appear in the first winter, the lack of acoustic insulation after the first tenant moves in, the malfunction of the air-handling unit three years later. Every day that passes uses up a warranty period, and certain acts, acceptance of the works above all, permanently lock in the applicable regime. The difficulty is not identifying a party at fault, it is choosing the right legal basis before the corresponding time limit has run out, and deciding when to move from negotiation to the court. This guide sets out the complete sequence of remedies available to the client (maître d'ouvrage) in respect of defective workmanship, from acceptance to formal notice (mise en demeure), from summary proceedings for an expert appraisal (référé-expertise) based on Article 145 of the French Code of Civil Procedure to the calling in of insurance policies, treating each step as a calendar deadline.

Day zero: acceptance fixes the starting point of every time limit

Acceptance is, under Article 1792-6 of the French Civil Code, the act by which the client declares that it accepts the works with or without reservations. It takes place at the request of the more diligent party, either by agreement or, failing that, by the court, and it is in any event, pronounced on an adversarial basis. For an investor, it is not an end-of-site formality: it is the date from which the completion warranty (garantie de parfait achèvement), the good-functioning warranty and ten-year liability all start to run simultaneously.

The drafting of the acceptance report therefore governs what follows. The reservations noted in the report define the scope of the defects whose repair is owed under the completion warranty, without closing the door on defects revealed after acceptance, which must then be notified in writing. The effect of acceptance without reservation on apparent defects, tacit acceptance and judicial acceptance are the subject of abundant case law: a client who accepts the works without technical assistance exposes itself to a debate over characterisation that it could have avoided by having the report prepared by its project manager or an inspection firm. The drafting of an enforceable acceptance report, tacit acceptance and judicial acceptance are dealt with in our article on acceptance of works and its effects.

Who can be pursued

Article 1792-1 of the Civil Code deems a builder to be any architect, contractor, technician or other person bound to the client by a contract for the hire of work, any person who sells, after completion, a work that he or she has built or had built, and any agent of the owner carrying out a task comparable to that of a party hiring out work. This definition mechanically widens the circle of defendants: the investor who acquires an asset built by its seller is not limited to sale litigation.

Mapping the time limits running from acceptance

The useful reflex is to draw up, from acceptance onwards, a single schedule setting out all the cut-off dates. The time limits do not overlap: they follow one another and intersect depending on the nature of the defect.

• Completion warranty: one year from acceptance (Article 1792-6).
• Good-functioning warranty for separable items of equipment: a minimum period of two years from its acceptance (Article 1792-3).
• Ten-year liability: the builder is discharged after ten years from acceptance of the works for the liabilities under Articles 1792 to 1792-2 (Article 1792-4-1).
• Intermediate defects and other liability actions against builders, outside the special warranties: ten years from acceptance (Article 1792-4-3).
• Actions against the subcontractor: ten years from acceptance for the damage referred to in Articles 1792 and 1792-2, two years for the items of equipment in Article 1792-3 (Article 1792-4-2). The subcontractor is therefore not referred to the general law alone.
• Personal actions not covered by these regimes: five years from the day the holder of the right knew or should have known the facts enabling it to exercise it (Article 2224).
• Actions arising from an insurance contract: two years from the event giving rise to them (Article L. 114-1 of the French Insurance Code).

The characterisation of the defect determines the applicable time limit, and therefore the urgency. The ten-year warranty available to the client presupposes, under Article 1792, damage which impairs the structural soundness of the works or which, affecting it in one of its constituent parts or one of its items of equipment, renders it unfit for its purpose, liability arising as of right unless an external cause is proved. Article 1792-2 extends it to inseparable items of equipment, an item being inseparable where its removal, dismantling or replacement cannot be carried out without damaging or removing material from the utilities, foundation, frame, enclosure or roofing works.

Formal notice: the act that opens up every option

None of the remedies for non-performance is triggered without formal notice. Article 1344 of the Civil Code defines it as a summons or an act containing a sufficient demand, or, if the contract so provides, the mere fact that the obligation has fallen due. It is the pivotal act of the calendar: it conditions specific performance (Article 1221), performance by a third party (Article 1222), price reduction (Article 1223), unilateral termination (Article 1226) and, under the completion warranty, performance at the contractor's cost and risk (Article 1792-6).

In practice, the formal notice must identify each defect, cite the legal basis relied on, set a time limit for performance and announce the consequences. A letter that merely points out "non-conformities" without a sufficient demand will not produce the intended effects.

During the first year: the completion warranty

Article 1792-6 provides for a self-contained mechanism, often under-used by investors. The repair deadlines are fixed by agreement between the client and the contractor concerned. Failing such agreement or in the event of non-performance within the time fixed, the works may, after a formal notice that has remained unsuccessful, be carried out at the cost and risk of the defaulting contractor. Performance of the works required under this warranty is recorded by agreement or, failing that, by the court.

Two limits must be borne in mind. The warranty does not extend to works needed to remedy the effects of normal wear and tear or use, which excludes operating defects on an asset that is already let. And recourse at the contractor's cost and risk presupposes a rigorous evidential sequence: a record of the condition before works, quotes, a dated formal notice, proof of the absence of any reaction. Failing that, the client bears an additional cost that it will not recover.

Performance at the debtor's cost (Article 1222) outside the completion warranty

This is the point on which practice still reasons from a repealed text. Since Ordinance No. 2016-131 of 10 February 2016, Article 1222 of the Civil Code provides that after formal notice, the creditor may also, within a reasonable time and at a reasonable cost, have the obligation performed itself or, with the prior authorisation of the court, destroy what has been done in breach of it. Judicial authorisation is required only for destruction. Having the defective work redone by another contractor therefore no longer requires prior authorisation from the court, contrary to the rule of former Article 1144. The use of this lever before acceptance of the works is dealt with separately in our article on defects noted before acceptance.

Two operational consequences. First, performance at the debtor's cost under Article 1222 is a lever for speed: a landlord faced with a waterproofing defect that blocks delivery of a floor plate can have a third-party contractor step in without waiting for a decision, provided it stays within a reasonable time and at a reasonable cost, a criterion the court will review if reimbursement is contested. Second, the text authorises a variant to be preferred where the amount is high: the creditor may also apply to the court for an order that the debtor advance the sums necessary for that performance. For an investor who does not wish to carry the cash cost of the remedial work, this application for an advance is often preferable to reimbursement after the event.

If the contractor abandons the site: termination by notification

Article 1226 allows the creditor, at its own risk, to terminate the contract by notification. Except in an emergency, a prior formal notice to perform the undertaking within a reasonable time is required, and it expressly states that, failing performance of its obligation by the debtor, the creditor will be entitled to terminate the contract. Where the non-performance persists, termination is notified with its grounds. The debtor may at any time apply to the court to contest the termination, and it is then for the creditor to prove the seriousness of the non-performance. The route is quick, but it is not without risk: it shifts the burden of proof onto the client.

Choosing between repair in kind, price reduction and compensation

Article 1217 of the Civil Code lists the remedies for non-performance and specifies that remedies that are not incompatible may be combined; damages may always be added to them. The choice is therefore not binary: an investor may obtain the remedying of the defects and, in addition, compensation for the rental income lost during the period of unavailability.

Specific performance, after formal notice, is the principle (Article 1221). It gives way if performance is impossible or if there is a manifest disproportion between its cost for the good-faith debtor and its benefit for the creditor. The words "good-faith", introduced by Law No. 2018-287 of 20 April 2018, which is interpretative in nature, are decisive: a contractor that knowingly substituted a non-compliant material largely forfeits the disproportion exception.

The price reduction under Article 1223, in the wording resulting from the same law, applicable to legal acts concluded or drawn up from its entry into force, distinguishes two situations. If the client has not yet paid all or part of the performance, it notifies the debtor, after formal notice and as soon as possible, of its decision to reduce the price proportionately; the debtor's acceptance of the creditor's decision to reduce the price must be set out in writing. If it has already paid, it must, failing agreement, ask the court for the reduction. Retaining an unpaid balance on the works contract is therefore, in itself, a negotiating lever that early payment destroys.

Summary proceedings for an expert appraisal under Article 145 CPC: when, where, against whom

Where the cause of the defect is disputed, where it involves several parties, or where the costing of the remedial work goes beyond the scope of a simple quote, a court-appointed expert appraisal becomes the structuring step. Article 145 of the Code of Civil Procedure states that if there is a legitimate reason to preserve or establish, before any proceedings, evidence of facts on which the outcome of a dispute may depend, legally admissible investigative measures may be ordered at the request of any interested party, on application or in summary proceedings. The assessment of the legitimate reason is a matter for case law and is made case by case.

Territorial jurisdiction changed on 1 September 2025

Decree No. 2025-619 of 8 July 2025 added two jurisdiction paragraphs to Article 145, which entered into force on 1 September 2025 and apply only to proceedings brought and notices of appeal lodged from that date. The court with territorial jurisdiction is, at the applicant's choice, the one likely to hear the case on the merits or, where applicable, the one within whose jurisdiction the investigative measure is to be carried out.

By way of derogation from the second paragraph, where the investigative measure concerns a building, the court of the place where the building is located has sole jurisdiction.

For construction litigation, the consequence is immediate: the option disappears. An appraisal concerning a building must be sought before the court of the place where the property is located, whatever the registered office of the builders or a jurisdiction clause. A Parisian investor holding an asset outside Paris can no longer centralise its summary expert-appraisal applications before the Paris judicial court. Cases brought before 1 September 2025 remain governed by the earlier state of the text, which makes it necessary to check the date proceedings were brought in pending cases.

Expert appraisal, record of findings or consultation

Article 263 of the Code of Civil Procedure sets a limit that standardised applications often ignore: an expert appraisal should be ordered only where findings or a consultation could not suffice to inform the court. For an isolated, non-progressive cosmetic defect, a record of findings is sufficient and costs far less than a multi-year appraisal. For a structural loss involving several parties, an appraisal is necessary. The choice is as much economic as legal: a lengthy appraisal immobilises the asset and defers the decision to carry out repairs.

Joining all the parties to the case

The scope of the summons in summary proceedings determines whether the report can be relied on against each party. Depending on the configuration, the following must be joined: the contractor holding the relevant works package, the project manager, the engineering consultancy, the technical inspector, any identified subcontractors and the insurers. Article L. 241-1 of the Insurance Code requires every person whose ten-year liability may be engaged to be covered by insurance and to show proof, at the opening of any site, that the contract has been taken out; any contract taken out for this purpose is deemed to include a clause ensuring that cover is maintained for the duration of the ten-year liability. Requesting the certificates before the site opens is the only way to identify these insurers usefully several years later.

Effect on time limits: what the texts say, and what they do not say

Article 2241 of the Civil Code provides that a claim brought before a court, even in summary proceedings, interrupts the limitation period as well as the forfeiture period, including where it is brought before a court lacking jurisdiction. Article 2239 adds that limitation is suspended where the court grants an application for an investigative measure made before any proceedings, the period starting to run again for a period of not less than six months from the day the measure was carried out.

These texts concern limitation and forfeiture. Their application to the warranty periods of the statutory construction warranties is the subject of a discussion that is a matter for case law and cannot be read in the wording of Articles 2239 and 2241. An informed client will therefore not bet on a suspensive effect in order to let the ten-year deadline approach: the working rule is to start the summary expert-appraisal proceedings early enough to have a real margin before the end of the period, and to bring proceedings on the merits without waiting for the remaining period to be exhausted.

The other grounds for summary proceedings: obtaining more than an appraisal

Summary expert-appraisal proceedings do not repair anything. Where the investor needs an immediate measure, two other grounds exist and are not to be confused with Article 145.

Article 834 of the Code of Civil Procedure allows, in all cases of urgency, any measures to be ordered that are not met by any serious challenge or that are justified by the existence of a dispute. Article 835 authorises the president of the judicial court, even where there is a serious challenge, to prescribe the protective or restorative measures that are required, either to prevent imminent damage or to put an end to a manifestly unlawful disturbance; and, where the existence of the obligation is not seriously open to challenge, to award an interim payment or to order performance of the obligation even where it is an obligation to do something.

In practice, an active leak threatening the frame falls within imminent damage and justifies an application for protective measures combined, in the same summons, with the application for an appraisal. An interim payment on account of the repair, by contrast, presupposes that the obligation is not seriously open to challenge, a condition rarely met until the appraisal has identified who is responsible.

Calling in insurance at the right time

Is the investor-client subject to structural damage insurance (dommages-ouvrage)?

Article L. 242-1 of the Insurance Code requires any person who, acting as owner of the works, seller or agent of the owner, has construction works carried out, to take out before the site opens an insurance policy guaranteeing, irrespective of any determination of responsibility, payment of the full cost of the works of repair of damage of the kind for which builders are liable.

The obligation does not apply to public-law legal entities, to legal entities acting as client under a partnership contract, or to legal entities carrying on an activity whose scale exceeds the thresholds referred to in the last paragraph of Article L. 111-6, where those persons have construction works carried out on their own account for a use other than housing. A commercial property company crossing these thresholds may therefore dispense with structural damage insurance on an office building. The choice is not neutral: giving up the policy means giving up quick pre-financing of repairs and agreeing to carry the liability litigation through to its conclusion. On an asset intended for resale in the short or medium term, the absence of structural damage insurance also costs money in the form of a discount.

The Article L. 242-1 timetable, deadline by deadline

The claim notification sets in motion a strictly dated mechanism:

• sixty days at most, from receipt of the claim notification, for the insurer to notify its decision on whether the cover is engaged in principle;
• ninety days at most, from the same receipt, to put forward an offer of compensation, which may where appropriate be provisional in nature;
• fifteen days for payment, where the insured accepts the offer;
• in the event of exceptional difficulties due to the nature or scale of the loss, an additional period for preparing the offer, proposed at the same time as notification of agreement in principle, based exclusively on technical considerations and reasoned, subject to the insured's express acceptance and not exceeding one hundred and thirty-five days.

The sanction is one of the few genuinely binding levers available to the client. Where the insurer fails to comply with one of these time limits or puts forward an offer that is manifestly insufficient, the insured may, after notifying the insurer, incur the expenditure necessary to repair the damage, the compensation paid then being increased as of right by interest equal to twice the legal interest rate. Prior notification is not optional: it is a condition of the benefit of the increase. The claim notification and the sanction for the insurer's silence are analysed in our article on calling on structural damage insurance.

Interaction with the completion warranty

Structural damage insurance takes effect after expiry of the completion warranty period referred to in Article 1792-6. It nonetheless applies in advance in two situations: before acceptance, after a formal notice that has remained unsuccessful, where the contract for the hire of work is terminated for non-performance by the contractor; after acceptance, after a formal notice that has remained unsuccessful, where the contractor has not performed its obligations. The standard clauses annexed to Article A. 243-1 of the Insurance Code confirm that the cover period ends on expiry of a period of ten years from acceptance, and exclude in particular damage resulting exclusively from the effects of normal wear and tear, lack of maintenance or abnormal use, as well as external cause.

Formal notice therefore comes back a third time in the sequence: it is the key to entry into the advance cover. A client that negotiates orally with its contractor during the first year deprives itself of this route.

The two-year limitation period under the insurance contract

Article L. 114-1 of the Insurance Code subjects all actions arising from an insurance contract to a two-year limitation period, from the event giving rise to them. In the event of a loss, the period runs only from the day the persons concerned became aware of it if they prove that they were unaware of it until then; and, where the insured's action against the insurer arises from a claim by a third party, only from the day that third party brought legal proceedings against the insured or was compensated by the insured. By exception, under Law No. 2021-1837 of 28 December 2021, actions relating to damage resulting from ground movements caused by drought-rehydration of soils recognised as a natural disaster are subject to a five-year limitation period, these provisions not applying to contracts in force on the date of publication of the law.

Two years, in a construction case, are quickly used up. It is the limitation period most frequently forgotten in claims relating to defective works.

The prior amicable step under Article 750-1 CPC: a narrow scope

Article 750-1 of the Code of Civil Procedure, in the wording resulting from Decree No. 2023-357 of 11 May 2023 applicable to proceedings brought from 1 October 2023, requires an attempt at conciliation, mediation or participatory procedure, on pain of inadmissibility which the court may raise of its own motion, where the claim seeks payment of a sum not exceeding €5,000, or where it relates to one of the actions referred to in Articles R. 211-3-4 and R. 211-3-8 of the French Code of Judicial Organisation or to abnormal neighbourhood disturbance. This prior step therefore has no general application in matters of defective workmanship. Exemptions exist, in particular where there is a legitimate reason based on manifest urgency or on the unavailability of court conciliators resulting in a first meeting more than three months away. Whether the text applies to claims made in summary proceedings is not expressly settled by its wording: in a sensitive case, the economy of the debate lies in assembling a documented urgency file.

Conclusion: a sequence, not a series of options

The hierarchy is clear. In the year following acceptance, the completion warranty is the most effective tool because it removes any debate over attribution of responsibility and allows performance at the contractor's cost and risk after a formal notice that has remained unsuccessful. After that year, the choice moves towards Article 1222 for speed, towards the ten-year warranty available to the client for defects impairing structural soundness or rendering the building unfit for its purpose, and towards structural damage insurance, where it exists, for pre-financing. Summary expert-appraisal proceedings under Article 145 CPC are never an end in themselves: they are the instrument that makes it possible to choose between repair in kind, price reduction and compensation, remedies that Article 1217 allows to be combined where they are not incompatible.

The operational recommendation comes down to a single line of conduct. As soon as a significant defect is noted, have a dated schedule drawn up of the four time limits that concern you (completion warranty, good-functioning warranty, ten-year warranty, two-year limitation period under the insurance contract), send a formal notice complying with Article 1344 that expressly cites the legal basis relied on, and file the summons in summary expert-appraisal proceedings before the court of the place where the building is located, which has had sole jurisdiction since 1 September 2025, without waiting for the ten-year deadline to approach.

Frequently asked questions

Is the court's authorisation needed to have defective work redone by another contractor? No, except to destroy. Article 1222 of the Civil Code, in the wording resulting from Ordinance No. 2016-131 of 10 February 2016, allows the creditor, after formal notice and within a reasonable time and at a reasonable cost, to have the obligation performed itself. Prior authorisation from the court is required only to destroy what has been done in breach of the obligation. The client may claim reimbursement of the sums incurred, and may also apply to the court for an order that the debtor advance the necessary sums.

Before which court should summary expert-appraisal proceedings be brought for defects affecting a building? Before the court of the place where the building is located, which has sole jurisdiction since the amendment of Article 145 CPC by Decree No. 2025-619 of 8 July 2025, which entered into force on 1 September 2025. The option offered by the second paragraph between the court hearing the merits and that of the place where the measure is carried out does not apply where the investigative measure concerns a building. These provisions apply only to proceedings brought from 1 September 2025.

Do summary expert-appraisal proceedings interrupt the ten-year warranty period? Article 2241 of the Civil Code provides that a claim brought before a court, even in summary proceedings, interrupts limitation and forfeiture, and Article 2239 suspends limitation where the court grants an investigative measure before any proceedings, the period starting to run again for a period of not less than six months from the day the measure was carried out. The application of these texts to the warranty periods of the statutory construction warranties is a matter for case law and cannot be read in their wording. Prudence requires bringing the action on the merits without counting on a suspensive effect.

Which defects fall within the completion warranty? All the defects notified by the client, whether through reservations noted in the acceptance report or by written notification for those revealed after acceptance, for one year from acceptance (Article 1792-6). The warranty does not extend to works needed to remedy the effects of normal wear and tear or use. Failing agreement on repair deadlines or in the event of non-performance within the time fixed, the works may be carried out at the cost and risk of the defaulting contractor after a formal notice that has remained unsuccessful.

Is a commercial property company required to take out structural damage insurance? Not systematically. Article L. 242-1 of the Insurance Code removes the obligation for public-law legal entities, for those acting as client under a partnership contract, and for legal entities carrying on an activity whose scale exceeds the thresholds referred to in the last paragraph of Article L. 111-6, where they have construction works carried out on their own account for a use other than housing. The exemption therefore does not cover residential projects.

Within what time limits must the structural damage insurer take a position? Sixty days at most from receipt of the claim notification to notify its position on whether the cover applies in principle, ninety days at most to put forward an offer of compensation, provisional where appropriate, and fifteen days to pay after acceptance. An additional period capped at one hundred and thirty-five days is possible in the event of exceptional difficulties, reasoned on technical considerations and subject to the insured's express acceptance. If a time limit is exceeded or the offer is manifestly insufficient, the insured may, after notifying the insurer, incur the necessary expenditure, the compensation being increased as of right by interest equal to twice the legal interest rate.

Can repair of the defects be combined with damages for loss of rent? Yes, within the limits set by Article 1217 of the Civil Code: remedies that are not incompatible may be combined; damages may always be added to them. Specific performance remains subject to the absence of impossibility and the absence of manifest disproportion between its cost for the good-faith debtor and the benefit for the creditor (Article 1221). The quantification of the operating loss is a matter for the court's assessment and requires precise documentation of the leases and the periods of unavailability.