Pay first, argue later: pre-financing structural defects

The module devoted to the ten-year liability describes who answers for a defect and for how long. It leaves open a question French law treats separately and that most foreign systems do not treat at all: who pays for the repair while it is being worked out who must pay. The distance between the two is long. Establishing a builder's ten-year liability requires expert examination, often court-appointed, sometimes several years. Meanwhile the structure stays damaged, the defect worsens, and the owner funds the works or gives up. It is that gap, one of cash rather than of liability, that pre-financing insurance fills.

Its logic is to pay first and argue afterwards. The insurer indemnifies the cost of repair works without waiting for liability to be established, then turns against the builders and their insurers by way of recourse. The owner is thus taken out of litigation it would otherwise have had to run, and that is the whole point: it no longer has to prove who was at fault, only that the defect is of the kind covered. The litigation does not disappear, it changes hands and runs between professionals, which is both faster and without consequence for the structure, since the works are done in the meantime.

What gives the mechanism its force is not the principle but the timetable framing it, which is mandatory law. The insurer has a short deadline to notify its position after the claim is made, then a second deadline to present an offer of indemnity if it has accepted cover. Missing those deadlines is not a fault opening a right to damages: it produces an automatic effect, the insured being free to incur the necessary expenditure and the indemnity being uplifted as of right. An obligation to pay with no sanction for delay would be an obligation to pay one day; it is the sanction that makes it useful, and it is the sanction one must know before invoking it.

A second feature, decisive on resale, is that the cover follows the structure and not the person. It benefits successive owners for its whole duration, which brings it into the value of the property: an informed buyer looks for it as it looks for the compliance of a connection, and its absence translates either into a discount or into a warranty demanded from the seller. The notary records that absence in the deed, which makes it public and lasting. The economic cost of an omitted placement is therefore measured not on the day of the loss but on the day of sale, often years later, and by somebody who did not take the decision.

Scope is where industrial projects go wrong most often, because it does not follow the logic one expects. It is determined neither by the size of the project, nor by the standing of the owner, nor by the contract amount, but by the nature of the structure and its use. Pure civil engineering works, certain infrastructure and certain industrial plant fall outside, while an ordinary office, residential or public-access building falls squarely inside, including when it stands within an industrial site and was built under the same permit and the same contract as the rest. The boundary therefore runs through projects instead of separating them, and it is read structure by structure.

What the cover does not do must also be seen, because its reputation as complete insurance is misleading. It funds the repair of the defect, it does not make good the loss accompanying it: business interruption, loss of enjoyment, rehousing, residual loss of value stay outside its object. A defect that halts an operation for six months will therefore give rise to fast funding of the works and to no indemnity for the stoppage, unless another contract, bought for that purpose, takes over. Confusing the two leads to a disappointment that is not a dispute at all: the cover did exactly what it promised.

That leaves the practical question, which arises when the project is being assembled and never again afterwards. This placement has a reputation for being costly and slow, it requires a complete technical file and often a technical inspector, and its negotiation falls at the moment every other piece of the assembly demands the same attention. It is also the only one whose omission becomes irreparable: unlike a construction policy, which can be replaced, it must be bought before the works open, and nothing allows it to be caught up afterwards. That is why it belongs on the list of opening checks rather than on the list of subjects to handle as the project runs.