Liability of a property developer for intermediate defects (désordres intermédiaires) requires proof of a personal breach by the developer. The developer remains bound by the obligations arising from Articles 1792, 1792-1, 1792-2 and 1792-3 of the French Civil Code, and therefore by the statutory construction warranties. Outside those warranties, however, the building owner (maître de l'ouvrage) must establish a breach, unless the property development contract expressly extends the developer's liability.
Key takeaways
- The property developer is bound by the obligations arising from Articles 1792, 1792-1, 1792-2 and 1792-3 of the French Civil Code: those statutory warranties apply without the building owner having to prove a breach.
- For an intermediate defect, that is, a defect falling outside those statutory warranties, the developer's contractual liability requires proof of a personal breach on its part.
- A clause in the property development contract making the developer responsible for the choice of subcontractors, materials, techniques and construction procedures may extend its liability beyond proven breach.
- The 5% retention (retenue de garantie) provided for by the Act of 16 July 1971 does not apply to a property developer that does not undertake to carry out part of the programme itself.
What liability does a developer bear for intermediate defects?
The third civil chamber holds that a property developer is liable for intermediate defects only where the building owner proves a personal breach (Civ. 3e, 11 June 2026, No. 23-22.360). The building owner, a société civile immobilière (French real estate company), had a facility built to accommodate dependent elderly persons. It entered into an engineering contract with a maître d'œuvre (party supervising the works on the building owner's behalf) and a property development contract with a developer. A joinery company installed the shutters and a rendering company applied the render. Acceptance of the works (réception) took place subject to reservations on 9 December 2008.
Complaining of defects, the building owner brought proceedings, following a court-ordered expert appraisal (expertise judiciaire), against the developer and its insurer, and then against the other parties involved in the construction by way of third-party joinder proceedings (intervention forcée). The court of appeal (CA Poitiers, 27 June 2023, No. 21/02733) classified the cracks and the defect affecting the roller shutters as intermediate defects. It ruled out the developer's liability for want of any established personal breach, and then set 9 December 2009 as the starting point for interest due on the balance of the works.
The third civil chamber rejects the complaint based on an automatic warranty owed by the developer: outside the statutory warranties, the building owner must establish a personal breach by the developer. That requirement applies to defects falling outside the scope of the statutory construction warranties. The decision states the rule in the following terms (free translation):
While a property developer, whose task is to arrange for the building to be constructed by means of contracts for works, is bound by the obligations arising from Articles 1792, 1792-1, 1792-2 and 1792-3 of the French Civil Code, its contractual liability for intermediate defects is subject to proof of a personal breach.
The Cour de cassation (France's highest civil court) nevertheless quashes the decision in part on two points. First, the court of appeal failed to respond to the submissions relying on the clause of the property development contract making the developer responsible for the choice of subcontractors, materials, techniques and construction procedures. Second, it set the starting point for interest by applying the retention regime, which did not apply here. The case is remitted to the Bordeaux court of appeal. The appeal to the Cour de cassation is also declared inadmissible as against two insurers, having been lodged more than two months after service of the decision under appeal.
What must an aggrieved building owner prove?
The building owner must choose its ground: the statutory construction warranties apply without proof of breach, whereas contractual liability for intermediate defects requires a personal breach by the developer. The classification of the defect therefore governs the burden of proof. Where the defect does not reach the degree of seriousness required by the statutory warranties, relying on the developer's status alone is no longer enough. It is then necessary to identify and establish what the developer itself did wrong: a choice of contractor, a failure to supervise, a shortcoming in monitoring the programme.
The contractual clause changes matters. The building owner argued that the contract made the developer responsible for producing the construction design and for the works, as well as for the choice of subcontractors, materials, techniques, construction procedures and the conformity of the works. The court of appeal did not respond to that argument and its decision is quashed on that point. The drafting of the property development contract may thus shift the evidential debate, provided that it is relied on with precision.
The 5% retention and the property development contract
The statutory retention regime does not apply to sums owed to the developer. The Act of 16 July 1971 allows instalments under private works contracts to be reduced by a retention of no more than 5% of their amount. That sum, held on deposit, must be paid to the contractor on the expiry of one year from the date of acceptance of the works, whether or not made subject to reservations, if the building owner has not notified reasoned opposition by recorded delivery letter. The Cour de cassation rules out that mechanism:
a property developer that does not undertake to carry out part of the programme itself is not a contractor for works and services within the meaning of Article 1779, 3°, of the French Civil Code
How does the ten-year warranty (garantie décennale) interact with proven breach?
The decision confirms the dividing line between the statutory warranties and ordinary liability, without settling the precise effect of a contractual clause that aggravates the developer's obligations. The developer remains the guarantor of performance of the obligations borne by the parties with which it contracts, and is bound on that basis by the statutory construction warranties. Outside that field, no strict liability follows from its status as an agent of common interest alone. Proof of a personal breach becomes once again the condition of any order against it.
What remains open is the scope of the disputed clause. The Cour de cassation does not say that the stipulation relied on gives rise to strict liability on the developer's part: it censures the failure to respond to that ground of appeal. The court of appeal to which the case is remitted will assess the scope of that clause and its consequences for the cracking defects. The outcome of that assessment is not prejudged by the quashing ordered.
What precautions at the contract and dispute stages?
The drafting of the property development contract and the way claims are framed determine the outcome of the debate on intermediate defects. A clause placing on the developer the choice of subcontractors, materials, techniques and construction procedures is not a mere statement of good intentions: it constitutes a ground that the courts must examine. The building owner is well advised to refer to it expressly in its submissions, linking it to each defect relied on.
Litigation strategy also becomes more secure when the bases of claim are articulated together. A principal claim based on the ten-year warranty may be supplemented by an alternative claim based on contractual breach or on the contractual clause. Lastly, proving the breach requires documents: the expert report, the reservations recorded on acceptance of the works, site meeting minutes and correspondence on the choice of contractors and processes.
Checks before taking action against a developer
- Check how the defect is classified: statutory construction warranty or intermediate defect, since the burden of proof is not the same.
- Re-read the provisions of the property development contract on the developer's liability for the choice of subcontractors, materials and construction procedures.
- Frame alternative claims against the developer where the ten-year classification is disputed.
- Do not treat the balance owed to the developer as a 5% retention, since that regime does not cover a developer that does not itself carry out part of the programme.
- Monitor service of decisions: the time limit for appealing to the Cour de cassation is two months, unless otherwise provided, and runs from service.
Frequently Asked Questions
Is a property developer automatically liable for all construction defects?
No. A property developer is bound by the obligations arising from Articles 1792, 1792-1, 1792-2 and 1792-3 of the French Civil Code, which cover in particular the ten-year construction warranty without proof of breach. For intermediate defects, which fall outside those warranties, the third civil chamber holds that contractual liability requires proof of a personal breach by the developer, and not merely a finding that a contractor failed to perform properly.
What is an intermediate defect in a construction project?
An intermediate defect is a defect falling outside the scope of the statutory construction warranties. It does not reach the degree of seriousness required for the ten-year warranty and does not fall under the other statutory warranties either. It is then dealt with under ordinary contractual liability. In the decision discussed, the lower court judges classified the cracks and the defect affecting the roller shutters in this way.
Can I withhold 5% of the sums owed to a property developer as retention?
No, where the developer does not undertake to carry out part of the programme itself. The Cour de cassation holds that such a developer is not a contractor for works and services within the meaning of Article 1779, 3°, of the French Civil Code. The regime under the Act of 16 July 1971, which allows a 5% retention released one year after acceptance of the works, whether or not subject to reservations, therefore does not apply.
How can a contract widen a property developer's liability before signature?
A stipulation expressly placing on the developer the production of the construction design, the choice of subcontractors, materials, techniques and construction procedures, and the conformity of the works, extends its commitment beyond the statutory warranties. As a rule, contracts lawfully formed bind the parties: the more concretely the clause describes the obligations assumed, the more effective it is when a defect appears.
How do you prove a breach by a construction professional after acceptance of the works?
Proof rests on technical and contractual documents gathered as the works progress. The expert report, the reservations recorded on acceptance of the works, site meeting minutes, construction drawings and written exchanges on the choice of contractors and processes form the usual basis. As a rule, the party claiming compensation bears the burden of establishing the breach, the damage and the link between the two.