Preventive summary proceedings (« référé préventif ») are a French legal procedure that is often misunderstood. In practice, they are mainly used to prevent and manage the risk of damage to the neighbourhood before it occurs, particularly during demolition and structural construction works.
What is the purpose of preventive summary proceedings?
To record the condition of the premises before a risk arises and to organise damage prevention, without waiting for an incident to occur.
In concrete terms, it allows the judge to:
• appoint a legal expert,
• responsible for recording the initial condition of neighbouring buildings,
• and sometimes to monitor the development of any damage during the works until the project is completed.
It is therefore not an action to obtain damages, but a preventive and probative measure.
In what cases is preventive summary proceedings used?
Preventive summary proceedings are mainly used:
• during construction, demolition or excavation work,
• when such work poses a risk to neighbouring buildings (cracks, subsidence, infiltration, etc.).
Practical examples:
• Construction of a building in the immediate vicinity,
• Excavation of a basement or deep foundations,
• Building extensions
How does the preventive summary proceedings differ from a bailiff’s report?
Unlike a bailiff’s report, preventive summary proceedings, conducted in an adversarial manner, are binding on all parties. Their scope is therefore legally binding.
Preventive summary proceedings also allow namely to reduce nuisance during construction or to give their opinion on the operational methods for carrying out the work.
Finally, unlike a bailiff, the expert can easily visit the interior of properties and co-owned properties, provided that this is the scope of his work.
Why the preventive summary proceedings is so important in practice?
1. Protecting the project owner
• Evidence against pre-existing damage
• Reduction in litigation
2. Protecting neighbours
• If damage appears after the start of the works, it is easier to prove.
• The expert can quickly alert the parties in case of danger and recommend measures.
3. Legal risk management tool
• Many disputes are settled more easily thanks to the expert report.
• The trial judge then relies, if necessary, on this objective work by an independent expert, which allows the parties to avoid lengthy and costly trials.
What are the conditions for obtaining the preventive summary proceedings?
The exercise of preventive summary proceedings requires the summons of all parties involved in the proceedings and all neighbours who may be affected by the construction project before the President of the Judicial Court in France (« Tribunal judiciaire »).
In addition to local residents, the companies involved in the construction project, the project manager, the local authority that owns the pavements and adjacent streets, and the construction companies must also be involved in the case.
During the hearings, the applicant presents the project and the reasons for seeking the preventive summary proceedings. The judge of the Judicial Court will appoint an expert with a specific scope of work, which usually consists of:
– visiting the site to observe the buildings owned by the defendants,
– drawing up all necessary descriptive and qualitative reports on the buildings and structures adjacent to your land, in order to determine whether, in his opinion, the said buildings show signs of damage and deterioration inherent in their structure or dilapidation, or resulting from the nature of the subsoil on which they stand,
– give his opinion on any constraints resulting from the environment and the neighbourhood that should be taken into account by the builders, and the specific construction measures to be implemented by the latter.
The President of the Court determines the deadline by which the expert must submit their report. This deadline is proportionate to the number of visits to be made and the scope of the project.
The President of the Court also sets the amount to be deposited before the expert assessment begins. This amount may change if the expert assessment takes a long time.
This procedure therefore has a cost and should be thoroughly planned beforehand.
In conclusion, preventive summary proceedings serve to:
• anticipate neighbourhood disputes,
• preserve evidence before the work begins,
• provide legal security for all parties.
Calling in an expert as part of preventive summary proceedings before the demolition/construction phase of your house/chalet/villa construction provides a safe protective legal framework, which needs seeking professional support from a solicitor/barrister specialising in this field of Real Estate/Construction law