Legal guarantees applicable to entrepreneurs

Under the Civil Code of Quebec, contractors must respect certain legal guarantees following the execution of construction work. Contractors must remain vigilant in order to respect the two main legal guarantees in construction, more particularly the guarantee of conformity (defects) and the guarantee for the loss of the work.

What is a legal guarantee? This is a minimum protection against one of the contracting parties that exists by law. These guarantees are “legal”, that is, they do not have to be included in the contract. The ones we will explore in this article therefore protect real estate owners and contractors following construction work.

Guarantee of conformity (defects)

The contractor, the sub-contractors, the architect, the engineer and the professional technologist are “jointly required for one year to guarantee the work against defects existing at the time of reception, or discovered within a year following reception.¹ ”

This guarantee covers defects. A defect will generally meet three criteria, namely poorly executed work that constitutes minor defects, for which there is no seriousness. By lack of seriousness, it is understood that these poorly executed works do not cause major inconveniences or risks for the safety of the occupants or for the solidity of the building. As an example, we may think of an improperly installed door frame.

Thus, article 2120 of the Civil Code of Quebec establishes two categories of defects, namely those visible at the reception of the building and those that are not visible. To benefit from the legal guarantee, defects visible at the reception of the building must be indicated, for example on the building pre-acceptance form, or in a registration document from a professional upon receipt of the work. In this case, the contractor is presumed responsible and must correct them. If the owner of the building accepts the work without reservation, he will not be able to request the correction of the defects visible at the reception of the building. It retains its remedies for non-visible defects.

It should be noted that the owner will not have to prove any fault of the contractor in connection with the defect reported. The guarantee ensures that the entrepreneur is presumed to be responsible based on proof of the existence of a defect and the complaint within the time limit set.

For defects that are not visible during a period of one year, the owner only has to prove the existence of a defect. Again, the owner will not have to prove fault. On the other hand, once the legal warranty of one year has expired, the owner must, on the contrary, prove the existence of a contractual fault, damage and a causal link to establish the liability of the contractor.

It should be noted that an entrepreneur may exclude the guarantee of conformity (defects) in a contract with a real estate owner, since article 2120 of the Civil Code of Quebec is not of a public order nature². However, it is recommended that an entrepreneur carefully draft this clause by consulting a lawyer.

Guarantee against the loss of the work

The guarantee against the loss of the work is enacted under article 2118 of the Civil Code of Quebec and says:” unless they can avoid liability, the contractor, architect, engineer and professional technologist who, as the case may be, directed or supervised the work, and the subcontractor for the work he performed, are jointly and severally liable for the loss of the work that occurs within five years following the end of the work, whether the loss results from a defect in the design, construction or construction of the work, or, again, from a vice of the ground. ”

Thus, the loss resulting from a defect in design, construction, construction or construction or a defect in the ground or the threat of loss accompanied by a significant restriction on the usefulness of the building are assimilated to the guarantee for loss of the structure.

This guarantee provides for a presumption of liability of the contractor, and other actors in article 2118 of the Civil Code of Quebec, for a period of 5 years from the end of the work. Again, the real estate owner will only have to prove the loss of the work or the potential risk of loss accompanied by a significant restriction on the usefulness of the building in order to benefit from the guarantee.

After the expiration of the 5-year period, however, the contractor remains liable, but the real estate owner will have to establish the fault, damage and causal relationship of the contractor.

Finally, the contractor will be able to avoid liability if he proves that the loss of the work is due to a professional error. However, it will be difficult for him to invoke the fault of one of his sub-contractors, because his role as an entrepreneur involves the management and supervision of the construction site. The subcontractor may avoid liability by alleging the error of a professional or the fault of the contractor.

It should be noted that this guarantee is of public order, which results in the nullity of any clause intended to reduce the duration, the extent and especially to rule out the application of the guarantee.

In summary, the contractor must remember that the Civil Code of Quebec provides that he is presumed responsible for one year for defects, and for five years for construction defects.

1) Article 2120 of the Civil Code of Québec.2) Massif Inc. (The) v. Quebec Architecture Clinic Inc., 2009 QCCA 1778.

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