Guarantee of perfect completion (Art. 1792-6 French Civil Code): the year in which the project owner can require remedial works

The acceptance (réception) has been signed, the acceptance report lists seventeen reservations, and three months later none has been cleared. The general contractor blames a subcontractor's default, the project manager (maître d'œuvre) chases without effect, and the lease signed with the tenant provides for a start date that is drawing near. This scenario, common on residential schemes and on commercial assets alike, plays out within a single window: the twelve months following acceptance, during which Article 1792-6 of the French Civil Code allows the project owner (maître de l'ouvrage) to require the remedial works and then to have them carried out at the expense and risk of the defaulting contractor. This guide deals exclusively with this offensive use of the guarantee: which steps to take, in what order, with which strict time limits, and how a purchaser off-plan (VEFA, vente en l'état futur d'achèvement) or a commercial property investor should adapt the sequence.

For the distinction between the guarantee of perfect completion (garantie de parfait achèvement), the two-year guarantee and the ten-year guarantee, and for the regime of acceptance itself (tacit acceptance, reservations, cleansing effect), we refer to our dedicated guides. The approach here is operational. The acceptance regime is thus set out in our article on acceptance of works, the act that transfers the risk to the project owner.

What Article 1792-6 requires the contractor to do, and what it does not cover

The guarantee of perfect completion is defined by Article 1792-6 of the French Civil Code, which sets its scope, its duration and its enforcement mechanism.

The guarantee of perfect completion, to which the contractor is bound for a period of one year from acceptance, extends to the remedying of all defects notified by the project owner, either by means of reservations noted in the acceptance report, or by written notification for those revealed after acceptance. (Article 1792-6, paragraph 2, of the French Civil Code)

Three characteristics shape the project owner's strategy.

First, the scope is indifferent to gravity. Unlike the ten-year guarantee, the guarantee of perfect completion under the French Civil Code requires neither an impairment of structural soundness nor unfitness for purpose. A tiling layout defect, a poorly executed joint, paintwork that does not match the contractual colour chart, a cosmetic defect on a facade: everything that has been properly notified falls within its scope. The courts also accept that apparent contractual non-conformities fall under this guarantee, provided they were the subject of a reservation.

Second, the obligation is an obligation to perform, that is, a remedy in kind. The project owner does not first claim compensation; it demands works. This characterisation shapes the whole procedural strategy: an order to perform and execution at the contractor's expense and risk take precedence over a claim for damages, which, for ancillary losses, falls under the ordinary law of contractual liability (Article 1231-1 of the French Civil Code).

Third, the debtor is the contractor, that is, the works contractor (locateur d'ouvrage) bound to the project owner by a works contract (contrat de louage d'ouvrage). The project manager, the architect, the design office or the technical inspector are not bound by the guarantee of perfect completion: their liability is governed by contractual liability, for failure to perform their supervision or direction of the works. The distinction has an immediate practical consequence: a formal notice sent to the project manager alone triggers nothing under Article 1792-6.

Two limits must be taken into account. Paragraph 6 excludes the works necessary to remedy the effects of normal wear or of use, an argument regularly raised on heavily used commercial buildings from the start of operation (hall floors, automatic doors, sanitary facilities). And apparent defects not reserved at acceptance are in principle covered by its cleansing effect, unless it is shown that they could not be detected by a lay project owner or that their full extent emerged only afterwards.

The guarantee is a matter of public policy. Article 1792-5 of the French Civil Code deems unwritten any clause whose purpose is to exclude the guarantee provided for in Article 1792-6 or to limit its scope. A special administrative specifications document (cahier des clauses administratives particulières) that made remedial works subject to a prior expert inquiry, or that capped the cost of remedial works, is unenforceable on that point.

The one-year countdown: reservations in the acceptance report and defects revealed later

The starting point is the date of acceptance, and that date alone. Where there are partial acceptances by lot, by phase or by building, as many annual periods run in parallel, which requires keeping a dashboard per lot rather than a single calendar for the whole operation. On an operation with large lots and staggered deliveries, this documentary discipline determines the ability to act twelve months later.

Clearing reservations: a process to be managed

The link between clearing reservations and the guarantee of perfect completion is often misunderstood. Clearing reservations is not an administrative formality left to the site supervisor: it is the adversarial finding that the required works have been performed, referred to in paragraph 5 of Article 1792-6, which provides that it is recorded by mutual agreement or, failing that, by the courts.

In practice, the project owner has an interest in:

• identifying each reservation by a number, a lot, a location and a factual description, to the exclusion of any premature legal characterisation;
• fixing, in accordance with paragraph 3, a schedule for remedial works agreed with each contractor concerned, formalised in writing and not by a mere site meeting report;
• organising adversarial clearance visits, with written notice, and refusing any clearance "by correspondence" on the basis of a simple photograph sent by the contractor;
• documenting partial clearances: a reservation 80% remedied remains an uncleared reservation.

The absence of agreement on the time for remedial works is, in itself, a ground for triggering the enforcement mechanism: paragraph 4 refers to the absence of such an agreement on the same footing as non-performance within the fixed time. A project owner faced with a contractor that refuses to commit to a programme therefore does not have to wait for a hypothetical period to elapse before serving formal notice.

Defects revealed after acceptance: written notification as a protective act

For defects appearing within the year, the text requires written notification. This notification is subject to no statutory formalities, but its date and receipt must be proved: registered letter with acknowledgement of receipt, or a deed of a commissaire de justice (bailiff) on high-stakes files. Notification by ordinary email, without acknowledgement of receipt, exposes the owner to a challenge as to the date of entry into the annual period.

The reflex to build in on an operated asset is a structured escalation of incidents: the property manager, the leasing manager or the managing agent of the building (syndic) must switch to formal notification for any recurring report, without waiting for the technical diagnosis. The notification preserves the right; analysis of the cause will follow.

Formal notice, the pivotal act of the guarantee of perfect completion

Paragraph 4 makes execution at the contractor's expense and risk subject to a formal notice that has remained without effect. This act is the lock on the whole sequence: without it, neither works carried out in the contractor's place nor most of the insurance levers are available.

A useful formal notice under the guarantee of perfect completion includes:

• express reference to Article 1792-6 of the French Civil Code and a reminder of the date of acceptance;
• precise identification of the defects, by reference to the numbered acceptance report or to earlier notifications, with their location and physical findings;
• a fixed time for performance that is reasonable having regard to the nature of the works, the accessibility of the premises and operating constraints;
• an explicit statement that the project owner will have recourse to execution at the contractor's expense and risk and, where appropriate, to the judge in summary proceedings (juge des référés) in the event of default;
• a reservation of ancillary losses, in particular loss of rent, additional project management fees and management costs.

The choice of addressees is strategic. The formal notice must be addressed to the contractor holding the relevant lot, with a copy to the project manager, to the identified subcontractor where applicable, and above all to the structural damage insurer (assureur dommages-ouvrage). Article L. 242-1 of the French Insurance Code provides that structural damage cover takes effect after expiry of the period of the guarantee of perfect completion, but applies by exception before that date where, after a formal notice that has remained without effect, the contractor has not performed its obligations. For defects of a ten-year nature appearing within the year, formal notice is therefore the condition for early access to the insurer's pre-financing. This interplay is regularly overlooked by project owners who declare the loss without having met the required precondition.

Formal notice also produces the ordinary-law effects: it causes default interest to run and materialises the non-performance attributable to the builder, a decisive element when the dispute later moves on to the assessment of operating losses.

Having the works carried out at the builder's expense and risk

Once the formal notice has remained without effect, two routes open up, the choice between which depends on urgency, on the builder's solvency and on the evidential exposure that is accepted.

The unilateral route: performance by a third party under Article 1222

Article 1222 of the French Civil Code authorises the creditor, after formal notice, to have the obligation performed itself within a reasonable time and at a reasonable cost, and then to seek reimbursement from the debtor. Combined with paragraph 4 of Article 1792-6, this text allows the project owner to commission the remedial works from a third-party contractor without prior court authorisation.

The advantage is the time saved, which is decisive when a tenant is waiting for delivery or when an operating permit depends on the conformity of the works. The risk is evidential and financial: the project owner advances the cash, and it will have to demonstrate the reality of the defects, their attribution to the defaulting contractor and the reasonableness of the cost. Securing the position requires a strict sequence: a finding by a commissaire de justice before any intervention, summoning the defaulting contractor to an adversarial meeting, competitive tendering on at least two or three quotations, retention of removed elements where their examination is necessary, and separate acceptance of the remedial works.

One technical precaution deserves mention: the intervention of a third party on a structure for which another builder remains liable under the ten-year guarantee complicates the later attribution of defects. For structural or waterproofing repairs, the balance often tips towards the judicial route.

The judicial route: order to perform, interim payment and expert appointment

The judge in summary proceedings may, on the basis of Article 835 of the French Code of Civil Procedure, order performance of the obligation where it is not seriously open to challenge, together with a periodic penalty payment (astreinte), or award an interim payment (provision) corresponding to the cost of the remedial works. The obligation to remedy the defects reserved in the acceptance report lends itself particularly well to this characterisation, the signed report constituting an admission of the defects by the contractor.

Where the technical cause is disputed, or where several parties pass responsibility between them, summary proceedings for the appointment of an expert under Article 145 of the French Code of Civil Procedure are essential, taking care to join all the builders, their insurers and the structural damage insurer, failing which the report will not be enforceable against them. The application for authorisation to have the works carried out at the builder's expense and risk may be made at the same time, or after the report has been filed.

Securing the time limit: interruption, foreclosure and calendar traps

It is on this ground that the technically best-prepared files are lost.

The one-year period under Article 1792-6 is a probationary period: defects must be notified, by reservation or by written notification, before it expires. A defect revealed in the thirteenth month no longer falls under the guarantee of perfect completion and must be analysed under the two-year guarantee of proper functioning or under ten-year liability, which requires meeting much more demanding conditions of gravity or severability. To link a defect to the guarantee that corresponds to it once the year has elapsed, see our analysis ten-year, two-year or perfect completion: which guarantee for which defect.

The action itself must, according to the Cour de cassation, be brought within the year: the guarantee of perfect completion must be enforced within one year following acceptance (Cour de cassation, 3rd Civil Chamber, 15 January 1997, No. 95-10.097, published in the Bulletin). Application to this action of the ten-year period of Article 1792-4-3 of the French Civil Code, introduced by the Law of 17 June 2008, is argued by some authors but cannot be taken as established. The practice is therefore to bring the action, at least in summary proceedings, before the annual deadline.

Two technical rules must be mastered:

• Article 2241 of the French Civil Code provides that a claim brought before the courts, even in summary proceedings, interrupts the limitation period as well as the foreclosure period; a summons in summary proceedings for the appointment of an expert, properly served before the end of the year, therefore preserves the project owner's position;
• on the other hand, the suspension of the period during the course of an investigative measure ordered before any proceedings, provided for by Article 2239 of the French Civil Code, does not apply to foreclosure periods, Article 2220 excluding these from the regime of extinctive prescription unless otherwise provided.

Operational consequence: waiting for the expert's report to be filed before issuing a summons on the merits is a risky strategy where the period concerned is a foreclosure period. On sensitive operations, the summons on the merits is prepared in parallel with the expert's operations.

Financial levers: retention of sums, guarantee and ancillary losses

The year of perfect completion is also a financial year. Law No. 71-584 of 5 July 1971 authorises a retention of sums as security (retenue de garantie) capped at 5% of the value of the works, deposited with an escrow holder or replaced by a personal and joint guarantee. This retention is released on expiry of the one-year period from acceptance, unless the project owner lodges a reasoned objection notified by registered letter with acknowledgement of receipt.

The deadline is strict. A project owner who lets the date pass without notifying a reasoned objection, that is, an objection setting out the defects and quantifying the remedial works, loses the only security immediately available against a contractor whose financial position is deteriorating. In a context of high failure rates in the construction sector, this security often determines the actual recovery rate. The objection is therefore prepared from the tenth month, on the basis of a statement of uncleared reservations costed by the project manager or a construction economist. The use of this retention as leverage on the clearing of reservations, and what remains of it if the contractor defaults, is detailed in our article on the retention of sums as security.

To this lever are added, depending on the contracts, the late-performance penalties stipulated in the special administrative specifications or resulting from standard NF P03-001 in its December 2017 version, where it is referred to in the contract, as well as set-off against the unpaid balance of the contract price. Set-off requires a certain, liquidated and due claim, which again argues for an adversarial costing of the remedial works.

Finally, the guarantee of perfect completion covers only the remedial works. Consequential losses, loss of rent, additional rent-free period granted to the tenant, compensation for loss of enjoyment, removal or security costs, technical fees incurred to record the defects, fall under the contractor's contractual liability on the basis of Article 1231-1 of the French Civil Code. They must be reserved from the formal notice onwards and documented as matters progress, failing which reconstructing them before the court becomes uncertain.

Guarantee of perfect completion and VEFA: what the purchaser actually has

The subject of the guarantee of perfect completion in a VEFA calls for a frequent correction. Article 1646-1 of the French Civil Code makes the seller of a building to be constructed bound, from acceptance of the works, by the obligations borne by builders under Articles 1792, 1792-1, 1792-2 and 1792-3. Article 1792-6 does not appear there. The seller off-plan is therefore not, in that capacity, the statutory debtor of the guarantee of perfect completion towards the purchaser.

The purchaser in fact has three routes, which must be coordinated.

The first is the guarantee against apparent defects and non-conformity under Article 1642-1 of the French Civil Code: the seller cannot be discharged from it before the expiry of one month after the purchaser takes possession. Article 1648, paragraph 2, requires the action to be brought within the year following the date on which the seller may be discharged from these defects or non-conformities. This period is a period for bringing proceedings, and not a mere period for giving notice: a simple written complaint to the seller is not enough to preserve it. This is the difference in regime with the heaviest consequences compared with the ordinary guarantee of perfect completion.

The second is the direct action against the contractors, the purchaser receiving, as an accessory of the building, the guarantee claims that the seller, as project owner, held against the works contractors. It requires obtaining from the seller the acceptance report, the list of contractors and the insurance policies, which it is prudent to provide for contractually in the deed.

The third is contractual: many off-plan sale contracts, particularly bulk sales and commercial operations, stipulate a contractual guarantee of perfect completion borne by the seller, with its own mechanism for clearing reservations and sometimes a back-to-back bank guarantee. This stipulation is often the most effective route, provided its time limits and formalities, generally shorter than the statutory periods, are complied with.

In a co-owned building (copropriété), defects affecting the common parts fall within the action of the co-owners' association (syndicat des copropriétaires), represented by the managing agent (syndic). Article 55 of Decree No. 67-223 of 17 March 1967 in principle makes the managing agent's action subject to authorisation by the general meeting, exempting certain claims in summary proceedings. Holding a general meeting, extraordinary if need be, before the annual deadline is a calendar point to be built in very early, given the notice periods.

Commercial asset: coordinating remedial works, delivery to the tenant and operability

On an office, industrial or retail building, the year of perfect completion overlaps with the start of operation, which creates three areas of friction.

The first concerns the coexistence of two reports: the acceptance report between the project owner and the contractors, and the report of delivery to the tenant. The tenant's reservations are not automatically carried over as acceptance reservations, and their legal characterisation differs. The landlord has an interest in organising a line-by-line correspondence between the two documents and in notifying the contractor concerned without delay, under Article 1792-6, of any defect reported by the tenant within the year.

The second concerns access constraints. Once the tenant is installed, the remedial works are carried out on an occupied site, with reduced working hours, safety constraints and sometimes increased costs. These constraints must be anticipated in the time fixed for the contractor: an unrealistic time weakens the formal notice, an excessive time delays the return of the asset to its operating standard.

The third concerns value. An asset whose reservations have not been cleared and whose defects are documented in an expert's report sees its operability and its liquidity affected, the due diligence of a purchaser or a refinancing lender being certain to identify the pending proceedings. Conversely, a remedial file that is managed, costed and interrupted within the time limits constitutes a transferable legal asset: guarantee claims follow the building, and their documentation is negotiated in the data room.

What must be decided before the twelfth month

The guarantee of perfect completion is not a waiting guarantee, it is an enforcement instrument of fixed duration. Its strength lies in its scope, which covers any notified defect without any condition of gravity, and in an enforcement mechanism that few statutory guarantees offer. Its weakness lies in the fact that it lapses, and that a passive project owner finds itself, in the thirteenth month, obliged to demonstrate an impairment of structural soundness or unfitness for purpose for defects it could have had remedied on a simple registered letter.

The approach is therefore simple: treat the year of perfect completion as a procedural calendar, and not as an extended phase of site monitoring. Three deadlines must appear on this calendar from the signing of the acceptance report. At the sixth month, an adversarial statement of uncleared reservations and the first formal notice to contractors that are late. At the ninth month, the choice between execution at the contractor's expense and risk and a referral to the judge in summary proceedings, taking into account the builder's solvency. At the tenth month, preparation of the reasoned objection to the release of the retention of sums as security and, if a dispute is taking shape, service of the summons in summary proceedings for the appointment of an expert before the annual deadline.

If you hold an asset accepted more than six months ago whose reservations have not all been cleared, have a costed and adversarial statement of those reservations drawn up now, and check the exact date of acceptance shown in your report: it, and not the date of delivery or of entry into service, determines the day on which your leverage disappears.

Frequently asked questions

Does the guarantee of perfect completion cover cosmetic defects and finishing faults? Yes. Article 1792-6 of the French Civil Code refers to all defects notified by the project owner, with no condition of gravity, soundness or unfitness for purpose. A paint defect, an irregular joint, a tile that is not flush or a non-conformity with the contractual colour chart fall within the scope provided they were reserved in the acceptance report or notified in writing within the year. Only the effects of normal wear or of use are excluded, by paragraph 6 of the same Article.

Is the project manager or architect bound by the guarantee of perfect completion? No. Article 1792-6 of the French Civil Code places the guarantee on the contractor. The project manager or architect, although deemed a builder within the meaning of Article 1792-1, is not its debtor: it answers for its failings in site supervision and in assisting with acceptance on the basis of its contractual liability (Article 1231-1 of the French Civil Code) and, for defects of a ten-year nature, of the presumption under Article 1792. The formal notice opening execution at the contractor's expense and risk must therefore be addressed to the contractor holding the lot, the project manager receiving only a copy.