Specific regime of ten-year liability not unconstitutional

In our newsflash of 3 November 2016 we already reported to you about the request for a preliminary ruling submitted by the Court of Appeal of Brussels concerning the interpretation of the ten-year liability of contractors and architects for stability-threatening defects. The Court asked the question whether the ten-year liability provided for in articles 1792 and 2270 of the Civil Code (CC) violates the constitutional principle of equality, given that this period (in contrast to the ordinary limitation period) is not amenable to interruption or suspension.

In its decision of 19 July 2017, the Constitutional Court answers this question in the negative. According to the Constitutional Court, the difference in treatment is reasonably justified.

First, the ten-year period within the meaning of the articles 1792 and 2270 CC is intended to protect public safety: the contractual liability of the architect or the contractor for serious defects is prolonged for an additional period of ten years as of the acceptance of the works. This period seeks to assure legal certainty and cannot be limited by contract.

By contrast, the filing of a claim based on minor defects after acceptance (i.e. defects that do not endanger the stability of the building) is subject to the ordinary limitation period of ten years provided for in article 2262bis, §1 CC. It is not of public order, given that it only aims to protect the principal, but not the public safety. Consequently, this period can be contractually limited.

Irrespective of the limitation period, a claim based on minor defects must be filed within a reasonable period as of their discovery. This procedural deadline does not apply for the filing of a claim on the basis of articles 1792 and 2270 CC. For this, only the ten-year period is important.

Finally, the Constitutional Court notes that a period of ten years is in any event sufficient to assess whether serious defects have arisen that are covered by the ten-year liability. For this reason as well, there is no occasion to regard the ten-year extinctive time limit as being unconstitutional.

For more information on this subject, you can always contact Joost Bats, Siegfried Busscher and Marco Schoups (the authors).