Summary:
Where a contractor carries out works that cause, without any fault on its part, abnormal neighbourhood nuisance to neighbouring properties, the neighbours cannot bring a direct action against the contractor. For its part, the project owner, sued by the neighbours on the basis of abnormal neighbourhood nuisance, will only be able to turn against its contractor if the construction contract contains a guarantee clause shifting onto the latter the liability based on abnormal neighbourhood nuisance. In the context of private works, this clause — which derogates from the ordinary law of civil liability — is to be interpreted strictly and must therefore be sufficiently precise. In public procurement, such a clause, which according to case law constitutes a derogation from Article 79, second paragraph, of the 2013 General Implementation Rules, will only be considered valid if it was made indispensable by the particular requirements of the contract and was the subject of a formal statement of reasons in the special tender specifications.
Article:
It frequently happens that abnormal neighbourhood nuisance is caused by works carried out by a contractor.
As a reminder, a works contractor who, through its fault, causes damage to a neighbouring building may of course be held liable by the dissatisfied neighbouring owner, by application of the rules of non-contractual civil liability.
But can its liability be invoked on the basis of abnormal neighbourhood nuisance (formerly derived from Article 544 of the old Civil Code and now enshrined in Article 3.101 of the Civil Code), which apply, by definition, in the absence of any fault?
Under the old Civil Code, the Court of Cassation had occasion to confirm that the liability of the contractor could not be invoked on the basis of Article 544 (Cass., judgment of 29 May 1975, Juportal). Indeed, liability based on abnormal neighbourhood nuisance concerns only the holders of a right of enjoyment that is an attribute of the right of property, and the contractor holds no right of enjoyment over the land on which it carries out works on behalf of the project owner.
Consequently, a contractor who carries out works that generate neighbourhood nuisance, where that nuisance is not connected with any fault on its part, cannot have its liability directly invoked by the dissatisfied neighbour on the basis of Article 3.101 of the Civil Code. In such a case, the latter can only bring an action against the project owner — the sole holder of a right of enjoyment over its land, and the sole party liable for neighbourhood nuisance.
Nevertheless, in the context of private works, the parties to the construction contract are free to agree on a guarantee clause, by which the contractor undertakes to hold the project owner harmless from all damages that the latter may be required to pay to third parties on account of abnormal neighbourhood nuisance resulting from the works, whether or not the contractor has committed a fault.
Such a clause is lawful, but is to be interpreted strictly, since it derogates from the ordinary law of fault-based civil liability. Thus, in order for the burden of liability based on neighbourhood nuisance to be shifted onto the contractor, it is preferable for the clause to expressly state that the contractor undertakes to indemnify the project owner against "abnormal neighbourhood nuisance, even where not resulting from its fault". A clause that states in general terms that the contractor indemnifies the project owner against "the damaging consequences that the performance of the works could cause" does not appear sufficient to achieve the intended result.
The guarantee clause cannot be relied upon against third parties — in particular the neighbouring owners who are victims of the nuisance — who can therefore only bring an action against the project owner.
Thus, where there is a contractual guarantee clause, if the works carried out by the contractor on the project owner's land cause non-faulty abnormal neighbourhood nuisance to the owner of the neighbouring building, the latter will have to bring an action against the project owner, whose liability will be engaged. By application of the guarantee clause, the latter will then be able to turn against the contractor.
In the context of public works, it should be recalled that Article 79, second paragraph, of the Royal Decree of 14 January 2013 establishing the general rules for the implementation of public contracts (hereinafter: the 2013 General Implementation Rules) provides that: "The contractor shall take, under its full responsibility and at its own expense, all the measures indispensable to ensure the protection, conservation and integrity of existing constructions and structures. It shall also take all the precautions required by the art of building and by the special circumstances in order to safeguard neighbouring properties and to prevent nuisance from being caused there by its fault." (emphasis added).
It follows that the contractor is liable only for its own fault in the event of damage caused to neighbouring properties. Thus, this article could not be relied upon to extend its liability to cases of abnormal neighbourhood nuisance, which apply even in the absence of fault.
In this context, the inclusion in the special tender specifications of a guarantee clause, shifting onto the successful contractor the final burden of liability for neighbourhood nuisance, even where not resulting from its fault, is considered by case law to constitute a derogation from Article 79, second paragraph, of the General Implementation Rules.
According to the General Implementation Rules, a derogation from Article 79 will only be valid if it has been "made indispensable by the particular requirements of the contract" (Article 9, § 4, first paragraph, of the 2013 GIR) and if it has been "the subject of a formal statement of reasons in the special tender specifications" (Article 9, § 4, second paragraph, of the 2013 GIR).
In this respect, by a judgment of 19 September 2011, the Antwerp Court of Appeal declared invalid the guarantee clause agreed by the contractor: "The clause in the special tender specifications stipulating that the contractor is liable for damage for which liability may be established on the basis of Article 544 of the Civil Code, and without the nuisance being connected with any fault of the contractor, must be regarded as a derogation from Article 30, § 2, of the General Tender Specifications [Article 79, second paragraph, of the 2013 GIR]. In the absence of a valid statement of reasons and of prior mention in the special tender specifications, this clause is devoid of any value." (Antwerp (7th ch. bis), 19 September 2011, summary consulted on Jura).
Furthermore, in a judgment of 14 December 2006, the Liège Court of Appeal appears to have considered that a guarantee clause imposing on the successful contractor the obligation to compensate for abnormal neighbourhood nuisance could never be justified by the particular requirements of the contract. It held that: "Contractual guarantee clauses transferring to the contractor the burden of compensating for non-faulty abnormal neighbourhood nuisance have not been lawful in public procurement since 1977, since positive law expressly prohibits derogations from the General Tender Specifications in so far as they are not made indispensable by the requirements of the contract concerned. Any ambiguity must in any event be interpreted in favour of the contractor. (…) In other words, no guarantee clause explicitly imposes — and indeed cannot impose — on the contractor the obligation to bear non-faulty abnormal neighbourhood nuisance. The clause is, at the very least, ambiguous and must be interpreted in favour of the contractor." (Liège, 14 December 2006, summary consulted on Jura).
It should be noted that this case law, which considers that a guarantee clause is a derogation from Article 79, second paragraph, of the 2013 GIR, is not free from criticism. Indeed, such a clause does not, as such, conflict with that provision (the contractor remains liable for its fault) but adds an obligation to it (the contractor is, in addition, liable in the event of abnormal neighbourhood nuisance not resulting from its fault) (see, to that effect: S. LEROY, "Les restrictions aux dérogations apportées au cahier général des charges : l'étroite frontière entre une juste rigueur et une rigidité aveugle", note under Cass., 2 April 2009, Entr. et dr., 2010, pp. 306-311, esp. p. 308, no. 7).
Matthieu Leysen
ml@resolved.law
www.resolved.law
