- Nuisance caused by building site works (for example noise, dust, boarding). This is usually unavoidable and is inherent in the decision to build on the site.
- Physical damage caused to neighbouring buildings (for example, by excavation works which destabilise neighbouring buildings).
- Damage resulting from the existence of the new building (for example, tall buildings affecting rights of light). In this case, the decision to build is itself the cause of the loss and therefore responsibility lies with the owner and is not connected with the manner in which the works have been carried out by the contractors.
Identifying the neighbour who has suffered the loss depends on the type of loss or damage that has occurred. Whereas building site activity affects all neighbours, physical damage to an adjacent neighbouring property principally affects its owner.
In France, a neighbour may either take action against the builder on the basis of civil responsibility or may (more often) take action against the owner of the site on the basis of the "théorie des troubles de voisinage" (the theory of troubles with neighbours). It is also possible for the neighbour to take action against everyone involved.
For nuisance caused by building site works, action may be taken against the contractor on the basis of civil responsibility if the nuisance is caused by a fault in the management of the site. However, often the nuisance occurs in the absence of any fault by the contractor – it is inherent in carrying out the construction.
Damage to a neighbouring property can be caused either by design faults in the new building or by the way the construction is carried out, and so can be attributable to either the contractor, the architect or the bureau de contrôle.
Action may also be taken against the constructor on the basis of its responsibility for the legal liability ("garde") of the site and machinery located on it. Under French Law the "gardien" of an object is the person who enjoys the use, management and control of that object. However, in practice the Cour de Cassation has systematically rejected actions based on the notion of the legal liability of a building site, because often it is difficult for the neighbour to prove that the contractors have the use, management and control of the site and the machinery.
There is a clear advantage for the aggrieved neighbour to take action against the owner of the site as there is no need to prove any fault, because of the presumption of responsibility imposed on the owner. The théorie des troubles du voisinage provides that any person who causes a damage or loss to his neighbour exceeding the ordinary obligations that arise as a neighbour must either stop the activity causing the loss or pay compensation. There is no need to show fault or legal liability. The abnormality of the problem must be assessed on the basis of its seriousness and its duration. Action can be brought against both the owner and the contractor on the basis of the théorie des troubles du voisinage. However, in practice a neighbour will only take action against the owner on this basis.
It is rare for a neighbour to take action against contractors. But contractors should not become complacent. According to recent case law of the Cour de Cassation it is likely that they will begin to see an increase in actions against them.
In addition, once the owner has been found responsible and has had to pay damages to the neighbour, it may have recourse against the contractor on two grounds; either on the basis of the building contract or by claiming subrogation of the rights of the neighbour.
The building contract may have expressly provided whether the owner or the contractor will be responsible for any liability. However, even in the absence of any contractual provision, an owner held to be liable under the théorie des troubles du voisinage may take action on a contractual basis against the contractor if the damage or loss was caused by a failure to observe the terms of the contract.
The owner may also take action against the contractor on the basis of the subrogation in the rights which the neighbour would have had, and can therefore take any action which the neighbour suffering the loss could have taken against the contractor.
This article was coauthored by Sabrina Albou, a solicitor at Linklaters, Paris and Victoria McKinnell, a solicitor at Linklaters, London.