The builder’s and seller’s liability in case of ruin or defects of the building

The art. 1669 of the Civil Code prescribes the responsibility borne by the contractor in the event of destruction or serious defects of the property – caused by faulty construction or soil vices – which occur within ten years from the completion of the work.

According to an orientation of well-established legitimacy, also accepted by the United Sections of the Supreme Court ( Cass. Civ., ON, 02/03/2014, No. 2284) , this responsibility has nature extra-contractual ( contrary to that provided in Article . 1667 cc .), since the rule would aim to protect the ‘ public interest in the stability and solidity of the property long term, and to preserve the’ safety and security of citizens.

It follows that, if they are detected either serious flaws, defects or structural defects of the building, that might impair or restrict their roominess, functionality or the normal enjoyment, the fault of the manufacturer is presumed (unless proved otherwise) and he has the obligation to pay damages.

The responsibility of the contractor in accordance with art. 1669 cc is “special” than that contemplated generic art. 2043 cc: the latter occurs on a residual, if there is no concrete in the legal conditions for the applicability of the first (for example, in case of damage manifested over the decade since the work fulfillment).

Application Requirements

In order to be enforceable liability in art. 1669 cc the existence of the following elements is required:

a good property (any work attached to the soil) destined to long-term (intrinsic characteristic of the good);
the ruin of the work has already taken place , it can be:
1. Total , in the case of:
  - Property disintegration of parts which form the structure required for its stability;
  - impairment of the essential elements of the work, such as to adversely affect the durability and solidity of the same;
2. partial, if it is related to some of the work structures essential for its stability or utilization;
or the current danger of destruction in the near future: the work presents alterations – detectable by an expert – such as to cause the ruin of the same within a specified period of time;
existence of serious construction defects that affect the characteristic of “long life”.

On the latter aspect, the courts have long debated on the notion of “serious fault” in which fall all the vices that affects essential elements of the property.

While the minority orientation provides a restrictive interpretation of the rule, identifying as essential elements of the property only its load-bearing structures, the majority orientation, on the contrary, the above definition also includes the accessory elements which restrict in any appreciable way the enjoyment and the functionality of the work (Cass. Civ., 01.03.2013, n ° 84; Cass. Civ., 29/4/2008, n ° 10857; Cass. Civ., 8/5/2007, n ° 10533 ; Cass. Civ., 04.11.2005, No. 21351; Cass. Civ., 04.28.2004, n ° 8140).

The vices and defects of the property, therefore, not only would identify with influential phenomena on static, durability and preservation of the building, but also concern the ‘ waterproofing, coatings, pipes, window frames, flooring, heating installations / hydraulic / electrical, etc. and any other alteration affecting the structure and overall functionality of the building, menomandone enjoyment to any appreciable extent. (Cass., Sect. II, 03/01/2013, n. 84).

The action for damages

Contrary to the actions that the customer can take to guarantee the rights of the vices and deformities of the work (to read related article click here ), the action provided for in Article. 1669 of the Code. civ. It is directed only to obtain compensation for damages .

L ‘ amount thereof varies in proportion to the nature and severity of property defects. Therefore compensation in case of:

total destruction of the property, is equal to the entire value of the latter;
partial ruin , is equal to the value of the partially collapsed;
danger of ruin , it should be commensurate with the cost of the work necessary to eliminate the danger itself. If this is not possible, the compensation will be equal to the cost of the work to build another building with the same characteristics.
serious defects , is equal to the difference between the value that the property would have no defects and that they really did the same.

There are other remedies available in addition to compensation?

According to the case yes, the contractor may be required, either:

to directly carry out the necessary works to eliminate defects;
to pay a sum of money corresponding to the cost of the work.

What are the active and passive subjects entitled action for damages?

Surely the subjects active legitimacy (those entitled to compensation for damages resulting from ruin or by property defects) are the customer and his successors , as specified by art. 1669 cc

The latter are those who take over as derivative in the ownership of the property (individuals who purchase from the original purchaser). Therefore, even the building can be considered a legitimate party active.

Among the passive legitimacy (the persons called upon to pay damages), however, the ‘ contractor is the only figure expressly provided for by the provision in question, but the law is at odds with regard to other parties involved in the construction of the building.

According to an orientation, passive legitimacy would also:

the manufacturer – retailer;
the designer;
the construction manager;
the same client.

The non-contractual liability of the first is aimed at protecting individuals who buy the property directly from the builders (when there is a customer). He is excluded from any liability only if he has contracted the construction of the building to another entity.

The end of “public policy” pursued by the rule is to prevent these buyers to apply the regulation of the sale, characterized by shorter terms to enforce the guarantee of property defects.

Regarding the responsibility of the designer and project manager , some exclude it entirely, making her fall only sull’appaltatore; others, however, believe should be commensurate to the errors directly or indirectly attributable to them.

Finally, a part of the doctrine considers that in the case where the contractor is a mere executor of the buyer , the latter can be considered the true manufacturer and then called upon to answer for the damage referred to in Article. 1669 cc

Others, however, believe that he, in these circumstances, would be responsible for the contract , pursuant to art. 2049 cc, for damages suffered by third parties.

The terms and prescription periods

Article. 1669 cod. civ. prescribes to the purchaser and his assignees three terms linked together, that violating prejudices the right of action for damages:

the ruin of the property or event of defects must be made within 10 years from the completion of the work. According to the case this period starts from the date of acceptance of the work by the client (or the submission of the finalized report in public procurement);
the complaint of the same must occur within one year of discovery, that is, when the client becomes aware of the true extent of the defects and their causes. In cases where it is necessary to bring an expert opinion, the period runs from the acquisition of the report by the expert;
l ‘ action intended to assert the responsibility of the contractor and other legitimate expenses is prescribed within one year from the reporting of defects or flaws.

IN SUMMARY

Under ‘ art. 1669 cc the contractor is liable to the purchaser (and its assignees) for the destruction or serious defects of the property – caused by faulty construction or soil vices – occurring within ten years from the completion of ‘ Opera.

This responsibility, according to the United Sections of the Supreme Court, has the nature extra-contractual , unlike that for defects and deformities of the work , since the rule would aim to protect the ‘ public interest in the stability and solidity of the long-term properties , and to preserve the safety and security of citizens .

Active Entitled have a principal and its successors, while the passive legitimacy are the contractor and, according to the law, even the manufacturer-seller, the designer, project manager and (sometimes) the same client.

Article. 1669 cc prescribes against the customer and his successors three terms linked together, the non-compliance which would be detrimental to the right to the action of damages:

the ruin of the property or event of defects must be made within 10 years from the completion of the work;
the complaint of the same must occur within one year of discovery;
l ‘ action intended to assert the responsibility of the contractor and other legitimate expenses is prescribed within one year from the reporting of defects or flaws.

The law firm dll’Avv. Marco Coscia offers legal advice and assistance to every person entitled asset or liability in case of damages for destruction or serious property damage due to construction defects or soil vices.