On 22 March 2019, the Dutch Supreme Court ruled (ECLI:NL:HR:2019:412) that the strict liability for buildings (opstalaansprakelijkheid) is not linked to a specific damaging act but to a damaging condition, as referred to in section 6:174 DCC. Therefore, there is no reason to regard a damaging act as an ‘event that caused damage’ as referred to in section 3:310 DCC concerning the limitation period for claims for damages. Where the ‘event that caused damage’ consists of a continuous event, the period of twenty years referred to in paragraph 1 of section 3:310 DCC starts to run after this event has ceased to exist.
The dispute that led to the Supreme Court ruling concerns a parking garage and an apartment building in the Dutch seaside town of Zandvoort. The Association of Owners of the parking garage (AoO Parking) held the Association of Owners of the apartment building (AoO Apartments) liable for the damage that AoO Parking suffered, and will suffer, as a result of a defective driveway that AoO Apartments constructed. AoO Parking based its claim on the fact that AoO Apartments is the owner of a defective structure which caused damage (in the form of the skewed wall due to the absence of a certain ground retaining construction). This concerns strict liability pursuant to section 6:174 DCC (opstalaansprakelijkheid).
AoO Apartments argued it cannot be held liable and, in addition, invoked both the short and the long limitation periods that can be found in section 3:310 (1) DCC.
The ‘short’ and ‘long’ limitation period
Section 3:310 DCC contains various rules concerning limitation periods for claims for damages. Paragraph 1 of section 3:310 DCC contains a ‘short’ limitation period and a ‘long’ limitation period. The short limitation period of five years starts to run on the day following the day on which the injured party became aware of both the damage and the person liable for it. This concerns actual knowledge. This means that the mere suspicion of the existence of damage is not sufficient; the injured party must actually be able to bring an action for compensation for damage. The creditor requires actual knowledge about the fact that the damage exists and the person that is liable for it.
The long period of twenty years begins on the day following the event which caused the damage. This period starts to run even if the injured party is not aware of the existence of his claim. This long limitation period is based on legal certainty (rechtszekerheid). This legal certainty is the debtor’s interest that after a long period of time he can no longer be held liable for the performance of an obligation of which he may not be aware.
In support of her invocation of the short limitation period, AoO Apartments submitted a number of photographs taken in 2011, which showed that the wall was already skewed at that time. AoO Apartments argued that since the wall has gradually skewed for forty years, this must have been known to AoO Parking in May 2010.
The Court of Appeal ruled that even if it could be seen on photographs from 2011 that the wall was skewed, this single fact is not sufficient to prove that AoO Parking must have known of the damage before 21 May 2010 (five years before the liability claim). Advocate General Valk states in his conclusion (ECLI:NL:PHR:2018:1433) that the photos may be able to say something about the knowability of the damage, but not about the required actual awareness. This is a factual decision that is reserved for the Court of Appeal.
With regard to the long limitation period, AoO Apartments argued that the event that caused the damage was the defective construction of the driveway in 1974, and that the claim was therefore already time-barred in 1994, twenty years later. The invocation of both the short and the long limitation period were rejected by the Court of Noord-Holland and the Amsterdam Court of Appeal. AoO Apartments filed for an interim appeal and this brings us to the Supreme Court.
The Supreme Court
As stated above, the long limitation period starts to run on the day after the event that caused the damage. AoO Apartments stated that the damage was caused by the driveway’s faulty construction in 1974 (because it was not provided with a ‘ground retaining structure’). Therefore, the claim should have become barred twenty years later, i.e. in 1994.
The Supreme Court ruled that the moment of construction of the driveway is not the moment when the limitation period begins to run. The owner of a building that poses a danger is liable on the grounds of section 6:174 DCC, if that danger materialises. The assumption of this liability is therefore not linked to a damaging act but to a damaging condition.
But how should ‘the event that caused damage’ be determined? On this point, the Supreme Court noted that the twenty-year limitation period is based on the importance of legal certainty. Legal certainty requires, in particular with regard to the twenty-year period, an objectively clear starting point. The continuing nature of the event thus established in this case means that this event cannot be reduced to a single moment. This is not compatible with legal certainty and it must therefore be assumed that in a case such as this, the twenty-year period begins to run as soon as the event or condition giving rise to the damage ceases to exist.
Given the importance of legal certainty underlying the long limitation period, it must be assumed that the long limitation period starts to run as soon as the continuous event giving rise to the damage has ceased to exist. This is consistent with the provisions of section 3:310 paragraph 3 DCC regarding the situations as referred to in paragraph 2 of the same section. In the Supreme Court’s ruling dated 25 June 1999 (ECLI:NL:HR:1999:ZC2934, NJ 2000/16 (Kindermishandeling)) it was determined that the provisions of section 3:310 paragraph 3 DCC would apply to no other situations other than those mentioned in paragraph 2. To that extent, this ruling constitutes a nuance of the current doctrine since the application of the provisions of paragraph 3 is now possible outside of the scope of the situations mentioned in paragraph 2.