Liability for building collapse (not) abolished

Article 1386 of the Belgian Old Civil Code has long provided that the owner of a building is liable for damage caused by its collapse when it is due to neglect of maintenance or a construction defect.

The new Book 6 of the Civil Code, which probably will apply as from 1 January 2025, does not adopt this provision and abolishes Article 1386 of the Old Civil Code outright.

However, it should not be inferred from this that the owner of a collapsed building would no longer be liable, quite the contrary.

The usefulness of article 1386 of the Old Civil Code proved increasingly limited in practice. Buildings collapse – fortunately – less and less often purely because of poor maintenance or construction faults. Buildings more often collapse because of fire or gas explosions, for example. In such cases, however, article 1386 of the Old Civil Code could not be invoked as such. Article 1386 of the Old Civil Code could also only be used against the owner.

In practice, another article of the law, namely Article 1384, first paragraph of the Old Civil Code, proved to be more useful, as on its basis a “custodian” (not necessarily the same person as the owner) of an object could be held liable if that property caused damage. That article then raised other problems, such as the fact that the victim of the damage had to prove who the custodian would be. This article 1384, first paragraph of the Old Civil Code therefore led over the years to extensive case law and legal doctrine on liability for “defective goods”.

Moreover, the Belgian Cour de cassation held that Article 1386, as lex specialis, prevailed in principle over Article 1384, first paragraph, in the sense that the two articles could not be combined. If Article 1386 applies, Article 1384, first paragraph cannot be invoked.

When revising liability law (with the introduction of Book 6 of the Civil Code), the legislator now wanted to introduce a single rule that also applies to risks posed by buildings, in particular by making the (faultless!) liability for “defective goods” also apply to buildings as such. The separate but often too limited regime of Article 1386 of the Old Civil Code will therefore be abolished.

According to the legislator, abolishing Article 1386 would also benefit the victim, as the victim would no longer have to prove that there was a collapse and, moreover, that this collapse was due to a lack of maintenance or a construction defect. Proving a defect in the building would then suffice.

The new regime also establishes the legal presumption that the owner is presumed to be the custodian of the property, unless the owner himself provides proof that another person is to be considered the custodian. As a result, it is no longer the victim who must prove who the custodian is.

This new statute will be included in Article 6.16 of the Belgian Civil Code, which in principle will read as follows (informal translation):

“The custodian of an object is liable without fault for damages caused by a defect in that object.

The custodian is the person who has the non-subordinate power of direction and control over the object. The owner is presumed to be custodian of the object unless he proves that custody is vested in another person.

An object is defective when it fails by any of its characteristics to provide the safety that one is entitled to expect in the given circumstances.”

Michael Bollen | MRICS
Laurius Real Estate

23 April 2024