In an interesting decision of 28 June 2016, the 20th chamber of the Court of Appeal of Brussels submitted a request for a preliminary ruling to the Constitutional Court concerning the interpretation of the ten-year liability of contractors and architects for stability-threatening defects.
According to articles 1792 and 2270 of the Civil Code (CC), a party who wishes to invoke the ten-year liability of the contractor or architect must file his legal claim within the decade following the acceptance of the works. This period of ten years is deemed to be a time period that is not amenable to interruption or suspension.
This means that the claim of a principal due to a serious defect that endangers the strength of the building, is less favourably treated than the claim of a principal due to a visible defect that does not endanger the strength of the building but about which the principal, at the time of provisional delivery-acceptance, already made a remark or the claim of a principal due to a hidden defect that does not endanger the strength of the building. This because, in the last two cases, the claim is subject to the ten-year limitation period provided for in article 2262bis, § 1 CC, which - by contrast - happens to be amenable to interruption or suspension .
The 20th chamber of the Court of Appeal of Brussels posed the question of whether the stricter interpretation that is given to the ten-year period provided for in articles 1792 and 2270 CC is compatible with the constitutional principle of equality.
Now we must wait and see how the Constitutional Court rules on this issue. Normally, the decision of the Constitutional Court can be expected by mid-2017. We will certainly be reporting on this again in detail in a future newsletter.
For more information on this topic, you can consult Joost Bats, Maarten Somers and Marco Schoups.