A usufructuary cannot invoke the ten-year work guarantee

The usufructuary of a property is not the owner and therefore cannot invoke the ten-year guarantee against a contractor who has done a bad job.

The Court of Cassation ruled against the usufructuary of a building who complained about the work of a contractor, even if this usufructuary was indeed the client, author of the order.

The ten-year guarantee is attached by law to ownership and not to the enjoyment of the property, explains the Court. Only the owner can trigger it. For the usufructuary, who is not the owner but only the user of the property, only the liability related to the contract that is not respected can be invoked, but the time limit is only five years.

The right to use real estate and to possibly reap the benefits thereof may be ceded by the owner to a third party. We then say that the property is divided between the usufructuary who has the right to use, lend, lease, collect income and the duty to pay taxes, and the bare owner who no longer has than the right to sell or give and the duty to maintain the structural work.

This situation sometimes occurs between parents and children to limit transmission rights, or between investors for often tax reasons.

In the case judged by the Court of Cassation, the usufructuary of a building had ordered works and complained of their poor execution. With regard to a work, he invoked the ten-year guarantee, due by any contractor and binds his compulsory insurance. But a usufructuary, rectified the judges, is not entitled to this facilitated solution. He can only invoke the traditional liability of the contractor, by proving the non-execution – or the poor execution – of the contract, and by bringing into play his general civil liability. This within a maximum period of five years.

(Cass. Civ 3, 16.11.2022, G 21-23.505).