No ten-year liability for loose tiles

Contractors and architects are liable for a period of ten years after the acceptance of works in which they are involved for any stability-threatening defects in buildings or large structures (articles 1792 and 2270 of the Civil Code).

The conditions for this liability are:

1. a building or architectural contract, including assignments entrusted to a design firm,
2. the object of the contract has to be a building or some other "large structure" of an immovable nature,
3. the building or large structure must be impaired by a defect that threatens, or could threaten, its solidity thereof,
4. the defect must be the result of an error by the designer, contractor or supervisory authority involved.

Most disputes arise concerning the third condition: the impairment of stability. 

In a decision of 9 January 2017, the Court of Cassation recalls that, on this basis, contractors and architects are in fact only liable for defects that endanger the stability of the building or of an important part thereof, or could endanger them over the more or less long term. The judge on the merits rules irreversibly on the factual issue of whether a defect endangers or can endanger the stability of the building or an important part thereof, but the Court of Cassation can verify whether this judge has derived from the findings made any consequences that are unconnected with them or as a result cannot possibly be justified.

In this case an expert investigation demonstrated that floor tiles came loose "in virtually all of the rooms of both the ground floor and the first floor of the building". The technical cause for why the tiles detached was determined to be their poor adhesive bonding and the failure to install expansion joints. The Court of Appeal decided that due to "the scope of this problematic, which manifested itself over almost the entire building [of the first defendant]" it had to be concluded "that it did indeed concern a serious defect which was of such a nature as to threaten the building’s stability”.

The Court of Cassation reversed this decision, deeming that the judge on the merits was wrong to rule "purely from the circumstance that the tiles came loose virtually throughout the building […] that it concerns a defect that threatens the stability of the building".

With this the Court of Cassation confirms the stricter interpretation of the liability of the contractor and architect on the basis of articles 1792 and 2270 CC. In our view, this is a correct decision: if the defect does not endanger the stability of the building or of a major part thereof, or could endanger them over the more or less long term, there is no liability on this basis. In such cases, of course, the contractors and architects can still be held liable for minor latent defects.

For more information on this topic, you can consult Pim van den Bos (co-author) and Siegfried Busscher (author and head of the Private Construction Law practice group).