5 procedural points to follow in case of abandonment of a construction site By Me Zakine, Lawyer Doctor in Law

Maitre Zakine, Doctor of Law, explains the steps to take if a company abandons its worksite.

After obtaining all the necessary authorisations from the town planning authorities, Mr BRICOLAGE called on a masonry company to build the outbuilding which will be used to accommodate his dear parents-in-law during the summer holidays.

What should it do?

The latter decides to consult a lawyer and understands that several steps must be followed before the nullity of the contract can be sought:

1- Give notice to resume the work with a formal notice

A deadline of eight days from receipt of the RAR letter should be set to resume the work.

In this letter, the precise delivery date, as defined, should be reiterated and consideration given to the application of possible penalties for delay if the delivery date has already passed.

It should also be noted that payments will be suspended until the work is resumed.

This is known as the non-performance exception: the party suspends payments if the contractual obligations of the other party are not fulfilled.

Finally, on the basis of Article 1226 of the Civil Code, threaten the other party with termination of the contract if he does not respond to the letter of formal notice.

In this case, the formal notice to resume the work "shall expressly mention that if the debtor fails to fulfil his obligation, the creditor shall be entitled to rescind the contract".

2- A bailiff will draw up a statement of abandonment.

On the day of the report, the Bailiff should be given the original estimate and proof of payments made so that he can trace the history of payments and the contractual relationship in the preamble to his report.

3. Rescission of the contract or cancellation of the contract

If the formal notice has not succeeded in putting pressure on the defaulting company, it is advisable to send a new registered letter to the company to inform it of your decision to terminate the contract on the basis of article 1226 of the Civil Code, taking into account the inconvenience caused by its failure to act, the dissatisfaction of the co-owners and the urgency of completing the work that has been started (in particular, for safety reasons and in accordance with your obligation to preserve and administer the building or residence).

A statement of account should be drawn up with the defaulting company, which will make it possible to fix, at the time of abandonment, the sums due for the work carried out, the penalties to be applied and the deductions for defects.

The company will be informed that you reserve the right to take legal action against it for the return of any overpayment made by it, in the event of subsequent defects or to claim compensation for damage caused either by its delay or by defects.

4 - Use another company

This will start with a new quote with a new delivery time established between you and the new company.

The quotation will enable a possible claim to the judge to be quantified in order to demonstrate that the failure of the first company has caused economic damage.

You may find yourself faced with a refusal from other companies to come and finish the work started by another company, because in the event of defects, it is the last company that may be held responsible.

Hence the importance of carrying out the following steps:

✓ send a copy of the report to the new company.

The "taking over" company will certainly express reservations. It may suggest that a new report be drawn up in the event of defects found but not recorded in the first report,

✓ sign a contract, an estimate determining the work to be carried out: it is necessary to clearly separate the resumption of the faulty work of the defaulting company from the new work that has not been carried out.

I invite you to propose it yourself to the new company, as soon as you request its intervention, so that it does not have any fears linked to the intervention of a first company.

✓ Draw up a contradictory report with the new company in order to be able to differentiate the work carried out by the two successive companies, for questions of liability and the ten-year guarantee.

Finally, I invite you - if possible - to draw up a service contract (containing the clause on late penalties, liability, termination of the contract) so that you are provided with a more solid legal basis, framing your contractual partnerships in a rigorous manner.

5 - Seek legal advice (construction lawyer) 

The safest solution is to be accompanied by a lawyer specialising in construction and litigation. 

Indeed, the lawyer will be best placed to help you seek damages in view of the excessive delays and to find out whether the developer can appeal to force majeure principles.

Mr BRICOLAGE is very disappointed not to be able to spend his summer holidays with his mother-in-law, but he knows that he can count on efficient and reactive support which will allow a positive outcome to this dispute.

It is certain that all these procedures are complex to implement. A formal notice in case of abandonment is of course absolutely necessary and will be sent by registered mail.

It will be asked to resume the building site within a limited period. It will also be necessary to have the abandonment of the building site noted by the owner of the property to be built, it will be necessary to call upon a bailiff.