Liquidated or struck-off builder: what remains of the ten-year warranty for the project owner

A structural defect appears five years after acceptance of an office building, and a search of the commercial register shows that the shell-and-core contractor was put into liquidation three years earlier and then struck off. The asset manager's instinct is to treat the claim as lost. That is an error of analysis: the disappearance of the company removes a solvent debtor, not the liability itself, and above all not the insurance cover attached to it. This guide sets out, from the point of view of the institutional project owner (maître d'ouvrage), the levers that survive the builder's failure (ten-year insurer, subcontractors, seller, manufacturer), the provisions on which they rest and the sequence of steps to take before the time limits close.

What liquidation or striking off does not make disappear

Ten-year liability (responsabilité décennale) arises by operation of law. Article 1792 of the French Civil Code makes the builder liable to the project owner or the purchaser of the works for damage that impairs the structural soundness of the works or that, by affecting one of their constituent parts or one of their items of equipment, renders them unfit for their purpose, unless the builder proves an external cause. That liability arose from the construction and the acceptance of the works. No provision makes its existence depend on the legal survival of the company.

Article 1792-4-1 sets the limit: the builder is discharged from the liabilities and warranties incumbent on it under Articles 1792 to 1792-2 after ten years from acceptance of the works. The clock runs from acceptance, the act by which the project owner declares that it accepts the works with or without reservations (Article 1792-6), and not from the builder's cessation of activity or from the appearance of the defect.

On the company law side, Article 1844-8, paragraph 5 of the French Civil Code provides that the legal personality of the company continues to exist for the purposes of the liquidation until publication of its closure. Striking off therefore does not in itself extinguish the status of debtor. Where the company is in compulsory liquidation (liquidation judiciaire) and its corporate bodies have disappeared, Article L. 641-9 II of the French Commercial Code allows, where necessary, the appointment of an agent in place of the company's officers by order of the president of the court, on the application of any interested party. Outside compulsory liquidation, the appointment of an agent to represent a company struck off after a voluntary liquidation rests on case-law construction, and should be anticipated as a procedural step in its own right and not as a formality.

Continuation of the ten-year warranty after cessation of activity

This is the decisive point, and the one most often misunderstood by property departments. Ten-year liability insurance is not a "claims-made" policy that would lapse on termination of the contract or on the disappearance of the insured.

The last sentence of Article L. 241-1 of the French Insurance Code is unambiguous:

Any insurance contract taken out under this Article is deemed, notwithstanding any stipulation to the contrary, to include a clause ensuring that cover continues for the duration of the ten-year liability borne by the person subject to the insurance obligation.

The standard clauses applicable to ten-year liability insurance contracts, annexed to Article A. 243-1, confirm and refine the mechanism: the contract covers, for the duration of the liability borne by the insured under Articles 1792 et seq., works for which site opening took place during the period of validity set out in the special conditions, and the cover relating to those works is maintained in all cases for the same duration, without payment of any subsequent premium. The phrase "in all cases" absorbs termination of the contract, cessation of premium payments, compulsory liquidation and striking off.

The site opening date, the connecting factor

The practical issue then shifts to a question of fact: was the site opened during the period of validity of the contract? The standard clauses adopt a single date applicable to the whole construction operation. That date is either the date of the declaration of site opening referred to in the first paragraph of Article R. 424-16 of the French Town Planning Code for works requiring a building permit, or, for works not requiring such a permit, the date of the first works order or, failing that, the actual date on which the works began.

Two exceptions deserve attention in cases where a company has disappeared. Where a professional begins its activity after that single date, site opening means, for that professional, the date on which it actually begins its services. And, a situation directly relevant here, where a professional performs its services before the single date and has ceased activity on that same date, site opening means, for that professional, the date on which its contract was signed or, failing that, the date of any act that may be regarded as the starting point of its services. A company that ceased activity during the operation is therefore not automatically outside cover: the connection is made through its contract.

Tracing the insurer of a company that has disappeared

The tool for reconstruction is the insurance certificate. Article A. 243-4 of the French Insurance Code lists its mandatory contents: the name and address of the policyholder, the name, registered office address and full contact details of the insurer, the insurance contract number, the date on which the certificate was issued, and then the characteristics of the operation as declared to the insurer, namely the address, the nature and cost of construction, the site opening date and the nature of the techniques used, together with the insured persons and the applicable excess. The certificate itself states that the cover is maintained in all cases for the same duration, while specifying that it cannot bind the insurer beyond the terms and conditions of the contract to which it refers.

In practice, certificates are found in the tender file and the administrative documents of the works contract, in the files of the site supervision architect or the technical inspector, in the file of works as executed, and, where the company is in compulsory liquidation, with the liquidator. Two checks determine the outcome of the case: does the period of validity cover the site opening date adopted, and does the nature of the techniques declared to the insurer correspond to the works actually carried out.

The direct action against the ten-year insurer

The central lever against a liquidated builder is the direct action. Article L. 124-3 of the French Insurance Code, in the version resulting from Law No. 2007-1774 of 17 December 2007, provides in its first paragraph that the injured third party has a right of direct action against the insurer covering the civil liability of the person responsible. The second paragraph prohibits the insurer from paying anyone other than the injured third party all or part of the sum it owes for as long as that third party has not been compensated.

The project owner therefore acts against the insurer in its own name, and not as a creditor of the insured in the collective proceedings. The indemnity does not form part of the assets to be distributed among the builder's creditors. That is precisely why the direct action remains effective after a closure for insufficiency of assets: Article L. 643-11 I of the French Commercial Code deprives creditors of the individual exercise of their actions against the debtor, subject to the exceptions it lists, and does not refer to the injured third party's action against the liability insurer.

What the insurer can and cannot raise

The standard clauses annexed to Article A. 243-1 settle part of the debate. The excess, which the insured keeps at its own expense, cannot be raised against the beneficiaries of the indemnities. The forfeiture of cover incurred by the insured in the event of inexcusable breach of the rules of the trade, as defined by the regulations in force and approved standards, cannot be raised against the beneficiaries of the indemnities. An insurer which, faced with a defaulting liquidator, relied on the fault of its insured or on unpaid premiums to refuse to cover a ten-year defect would be going beyond the standard clauses.

The exclusions are exhaustive. The cover does not apply to damage resulting exclusively from the intentional act or fraud of the policyholder or the insured, from the effects of normal wear and tear, lack of maintenance or abnormal use, or from an external cause. The real ground for discussion lies elsewhere: whether the defect is of a ten-year nature, whether it is attributable to the insured company, whether the declared techniques match the works carried out, and the amount of cover, bearing in mind that, for works intended for a use other than housing, the standard clauses refer to the construction cost declared by the project owner, within the applicable regulatory limits.

Two points must be handled with caution by counsel and cannot be resolved by reading the texts alone. First, the interaction between the direct action and the stay of individual proceedings, that is, whether the project owner must first have the liability of the builder in liquidation established in order to obtain a judgment against the insurer. Second, the duration of the direct action and whether the two-year limitation period of insurance law can be raised against the injured third party. These questions are a matter for case law; the procedural strategy is not to run the risk of having them decided unfavourably, by acting early and joining the insurer and the body representing the builder at the same time.

The procedural timeline: summary proceedings for an expert appraisal under Article 145 CPC as the pivotal step

In a construction case, the court-ordered expert appraisal determines everything: whether the defect is of a ten-year nature, allocation between the parties involved, and quantification. It is sought on the basis of Article 145 of the French Code of Civil Procedure, which allows investigative measures where there is a legitimate reason to preserve or establish, before any proceedings, evidence of facts on which the outcome of a dispute may depend, at the request of any interested party, by application or in summary proceedings (référé). The procedural framework of this measure, from the legitimate reason to the conduct of the expert operations, is set out in our article on summary proceedings for an expert appraisal before a construction dispute.

Decree No. 2025-619 of 8 July 2025 supplemented this provision, for proceedings brought from 1 September 2025, with a rule on territorial jurisdiction. The competent court is, at the claimant's choice, the one that could hear the case on the merits or, where applicable, the one within whose jurisdiction the investigative measure is to be carried out. But, by derogation from the second paragraph, where the investigative measure relates to a building, the court of the place where the building is located has sole jurisdiction. For a construction expert appraisal, the choice disappears: the application must be made at the place of the building. A summons issued before the court of the project owner's registered office exposes the claimant to a jurisdictional challenge and to a loss of time that the proximity of the ten-year deadline makes costly.

Interruption and suspension: two distinct effects

Article 2241 of the French Civil Code states that a claim brought before the courts, even in summary proceedings, interrupts the limitation period and the time bar, and that the same applies where it is brought before a court lacking jurisdiction or where the originating act is annulled by reason of a procedural defect. It is the summons in summary proceedings that produces this effect, on the date it is served, and only in respect of the parties summoned.

Article 2239 adds a distinct effect, this time attached to the decision: limitation is suspended when the judge grants an application for an investigative measure made before any proceedings, and the period starts to run again, for a period that cannot be less than six months, from the day on which the measure was carried out. The two mechanisms are not the same and do not replace one another: one is triggered by the claimant's act, the other by the judge's order. The exact nature of the ten-year period under Articles 1792-4-1 and 1792-4-3, and therefore the effect of suspension on that period, are the subject of debate; the prudent course is never to rely on suspension alone and to bring the action on the merits in good time.

A simple rule of practice follows: summon all the relevant parties in summary proceedings, the ten-year insurer included, and do not postpone joining a party on the ground that it will be called later to the expert operations. Operations conducted without a party having been called raise difficulties of enforceability against that party which are hard to resolve at the end of a limitation period.

The steps not to miss in the builder's collective proceedings

The judgment opening proceedings interrupts or bars any court action by creditors seeking an order against the debtor to pay a sum of money, and any action seeking termination of a contract for non-payment (Article L. 622-21 I of the French Commercial Code, in the version resulting from Ordinance No. 2021-1193 of 15 September 2021, not applicable to proceedings in progress on 1 October 2021). These effects apply in compulsory liquidation by express reference in Article L. 641-3, which also refers to Article L. 622-22 and to Articles L. 622-24 to L. 622-27 for the filing of claims with the liquidator.

If proceedings had already been brought against the builder, they are interrupted until the claim is filed, then resumed as of right, the court-appointed creditors' representative (mandataire judiciaire) having been duly called, but they seek only to establish the claims and to fix their amount (Article L. 622-22). The project owner will therefore not obtain an order for payment against the company, which makes the action against the insurer all the more central.

Filing a claim that has not been quantified

Article L. 622-24 requires claims to be filed even where they are not established by a title, claims whose amount has not yet been definitively fixed being filed on the basis of an estimate. A project owner whose defect has not yet been the subject of an expert appraisal has no reason to hold back: it files an estimated claim, and may refine it later. The time limit is two months from publication of the judgment opening proceedings in the Official Bulletin of Civil and Commercial Notices, extended by two months for creditors who do not reside in metropolitan France where the proceedings are opened by a court in metropolitan France (Article R. 622-24). On the time limits, the content of the declaration and relief from forfeiture, see our analysis of the filing of claims in collective proceedings.

Failing a declaration within those time limits, Article L. 622-26 opens relief from forfeiture (relevé de forclusion): the supervising judge (juge-commissaire) relieves the creditor if it establishes that its default is not due to its own act, or that it is due to an omission by the debtor when drawing up the list of creditors. The action may be brought only within a period of six months, running from publication of the judgment opening proceedings or, by exception, where the creditor shows that it was unable to know of the debtor's obligation before the expiry of that six-month period, from the date on which it is established that it could not have been unaware of the existence of its claim. Since the Ordinance of 15 September 2021, it is claims and security interests not properly declared that cannot be enforced against the debtor on the terms laid down by that provision.

As a ten-year defect often comes to light after the proceedings have been closed, this exception with a floating starting point must be documented from the moment the loss is discovered: date of appearance, date of the first finding, date on which the liquidation was discovered.

Widening the circle of surviving debtors

The ten-year insurer is not the only lever. The analysis must systematically cover the other potentially liable parties, each with its own insurer.

• A seller who has sold, after completion, works that it built or had built is deemed a builder within the meaning of Article 1792-1, 2° of the French Civil Code. An investor that has acquired a recent asset from a developer therefore has a debtor distinct from the contractors.
• A person who, although acting as agent of the owner of the works, performs a task comparable to that of a contractor under a works contract (locateur d'ouvrage) is also deemed a builder (Article 1792-1, 3°).
• The seller of a building to be constructed is bound, from acceptance of the works, by the obligations to which architects, contractors and other persons bound to the project owner by a works contract are themselves bound under Articles 1792, 1792-1, 1792-2 and 1792-3; Article 1646-1 specifies that these warranties benefit successive owners of the building. The point is structural for a buyer of an asset sold off plan (VEFA), and then for the fund that buys it from that buyer.
• The manufacturer of works, of part of works or of an item of equipment designed and produced to meet, in working condition, precise requirements determined in advance is jointly and severally liable for the obligations imposed by Articles 1792, 1792-2 and 1792-3 on the contractor that installed it without modification and in accordance with the manufacturer's rules (Article 1792-4). The importer, and anyone who has presented the product as their own work by placing on it their name, trademark or any other distinctive sign, are treated as the manufacturer, in the version resulting from Ordinance No. 2019-1169 of 13 November 2019. Where the installing company has disappeared and the defect lies in the product, this lever becomes the first one to use.
• Finally, subcontractors: Article 1792-4-3 covers, apart from the actions governed by Articles 1792-3, 1792-4-1 and 1792-4-2, liability actions brought against the builders referred to in Articles 1792 and 1792-1 and their subcontractors, which are time-barred ten years from acceptance of the works. That provision fixes the time limit for the action, not the liability regime applicable to the subcontractor, who is not subject, in favour of the project owner, to the presumption borne by the contractor under a works contract. Identifying the subcontractors, their contracts and their insurance certificates is therefore a step to be taken during the expert appraisal, not after it.

The blind spots: no construction damage insurance, no insurance obligation

An institutional project owner must not assume that construction damage insurance (assurance dommages-ouvrage) exists. Article L. 242-1, paragraph 2, of the French Insurance Code exempts from the obligation public-law legal entities, legal entities acting as project owner under a partnership contract, and legal entities carrying on an activity whose size exceeds the thresholds referred to in the last paragraph of Article L. 111-6, where those entities have construction works carried out on their own account for a use other than housing. Many commercial schemes carried by institutional investors fall within this exemption.

A second blind spot, more radical: Article L. 243-1-1 excludes from any insurance obligation maritime, lake and river works, road, port, airport, heliport and railway infrastructure works, works for the treatment of urban residues, industrial waste and effluents, together with their items of equipment; it also excludes roads, pedestrian works, car parks, miscellaneous networks, pipelines, lines or cables and their supports, works for the transport, production, storage and distribution of energy, works for the storage and treatment of bulk solids, fluids and liquids, telecommunications works and uncovered sports facilities, unless the work or item of equipment is ancillary to works subject to those obligations. Part II finally excludes structures existing before the site opened, except those which, fully incorporated into the new works, become technically indivisible from them. A defect affecting a stand-alone car park or an energy network may thus give rise to ten-year liability with no compulsory insurer on the other side.

Where construction damage insurance does exist, it remains the shortest route, because it guarantees payment for repair works without any search for liability. The time limits in Article L. 242-1 then structure the balance of power: sixty days from receipt of the claim notification to notify the decision on whether cover applies, ninety days from that same receipt to make an offer of indemnity, fifteen days for payment if the offer is accepted. Where the insurer fails to meet one of those time limits or makes a manifestly insufficient offer, the insured may, after notifying the insurer, incur the expenditure necessary for the repairs, the indemnity then being increased as of right by interest at twice the legal rate. An additional period may be proposed in the event of exceptional difficulties, on exclusively technical and reasoned grounds, subject to the express acceptance of the insured and not exceeding one hundred and thirty-five days. After payment, the insurer is subrogated to the rights and actions of the insured against third parties who, by their act, caused the damage, under the conditions of Article L. 121-12, in the version in force since 25 June 2025. The 60 and 90 day time limits and the penalty for the insurer's silence are dealt with separately in our article on calling on construction damage insurance.

Conclusion

The liquidation or striking off of the builder does not change the nature of the case: it changes the opponent. The repair claim survives until the end of the ten-year period, the insurance cover survives in all cases by the effect of Article L. 241-1 and the standard clauses, and the direct action under Article L. 124-3 makes it possible to reach the insurer without going through the distribution of the assets. What kills cases is almost never the disappearance of the company, it is the time lost looking for it: expert appraisal requested too late, insurer identified after the expert operations have closed, subcontractors never called, claim not filed with the liquidator.

Our recommendation is therefore one of timing. As soon as a defect that may fall within Article 1792 is noted, first reconstruct the insurance certificates of all the parties involved within the meaning of Article A. 243-4, then summon in summary proceedings all the builders, their insurers and, where applicable, the liquidator or the appointed agent, before the court of the place of the building, which now has sole jurisdiction where the measure relates to a building. At the same time, file an estimated claim if collective proceedings have been opened. These steps can be carried out within a few weeks; they determine the whole of the value recoverable on the loss.

Frequently asked questions

Does the ten-year warranty continue if the builder has ceased activity? Yes. Article L. 241-1 of the French Insurance Code deems any contract taken out under the insurance obligation to include, notwithstanding any stipulation to the contrary, a clause ensuring that cover continues for the duration of the ten-year liability borne by the person subject to the obligation. The standard clauses annexed to Article A. 243-1 specify that the cover relating to works for which site opening took place during the period of validity of the contract is maintained in all cases for the same duration, without payment of any subsequent premium. Neither termination of the contract, nor liquidation, nor striking off brings this cover to an end.

Can an action be brought directly against the insurer of a liquidated builder? Yes, on the basis of the first paragraph of Article L. 124-3 of the French Insurance Code, resulting from Law No. 2007-1774 of 17 December 2007, under which the injured third party has a right of direct action against the insurer covering the civil liability of the person responsible. The indemnity is owed to the injured third party and does not pass through the assets of the collective proceedings. The precise interaction between this action and the stay of individual proceedings is a matter for case law and justifies joining, as a protective measure, the liquidator or the appointed agent.

Which court should be seized for summary proceedings for an expert appraisal under Article 145 CPC in a construction matter? Since Decree No. 2025-619 of 8 July 2025, applicable to proceedings brought from 1 September 2025, Article 145 of the French Code of Civil Procedure provides that the competent court is, at the claimant's choice, the one that could hear the case on the merits or the one within whose jurisdiction the measure is to be carried out, but that, by derogation, where the investigative measure relates to a building, the court of the place where the building is located has sole jurisdiction. A construction expert appraisal therefore falls within that exclusive jurisdiction.

Can the insurer raise the excess or its insured's fault against the project owner? No, not for either of these defences. The standard clauses annexed to Article A. 243-1 state that the excess retained by the insured cannot be raised against the beneficiaries of the indemnities, and that the forfeiture incurred in the event of inexcusable breach of the rules of the trade cannot be raised against the beneficiaries of the indemnities. The exclusions are exhaustive: intentional act or fraud, effects of normal wear and tear, lack of maintenance or abnormal use, external cause.

Must a claim be filed with the liquidator when the defect has not been quantified? Yes. Article L. 622-24 of the French Commercial Code requires claims to be filed even where they are not established by a title, claims whose amount has not been definitively fixed being filed on the basis of an estimate. The time limit is two months from publication of the judgment opening proceedings in the BODACC (French official gazette of civil and commercial notices), extended by two months for creditors who do not reside in metropolitan France (Article R. 622-24).

The defect appears after the liquidation has been closed for insufficiency of assets: is everything lost? No. Article L. 643-11 I of the French Commercial Code deprives creditors of the individual exercise of their actions against the debtor, subject to the exceptions it lists, but does not refer to the injured third party's direct action against the liability insurer. In addition, Article L. 622-26 allows a creditor who was unable to know of the debtor's obligation to have the six-month period for relief from forfeiture run from the date on which it is established that it could not have been unaware of the existence of its claim.

Which other parties should be pursued when the company has disappeared? A seller who has sold, after completion, works that it built or had built, and an agent performing a task comparable to that of a contractor under a works contract, are deemed builders (Article 1792-1, 2° and 3° of the French Civil Code). The seller of a building to be constructed is bound by the same warranties from acceptance, and those warranties benefit successive owners (Article 1646-1). The manufacturer of an item designed and produced to meet, in working condition, precise requirements determined in advance is jointly and severally liable with the contractor that installed it without modification (Article 1792-4). Actions against builders and their subcontractors are time-barred ten years from acceptance (Article 1792-4-3).