Art. 58 CO establishes the principle of strict (causal) liability of the owner of a structure: the owner is liable to compensate for damage caused by a construction or maintenance defect in the structure, without the injured party having to prove fault. This objective liability, distinct from the tortious liability under art. 41 CO, applies to a wide range of situations: a fall on a defective staircase, collapse of a roof, an accident caused by a poorly maintained installation. It constitutes one of the central bases of civil liability in property and movable matters in Switzerland.
Causal (strict) liability
The liability of the building owner is called causal or objective: it is sufficient that the conditions of art. 58 CO are met to engage liability, without any need to demonstrate the slightest negligence on the owner's part. The owner cannot exonerate himself by proving that he was unaware of the defect or that he acted with all due diligence.
This rigour is justified by the position of control that the owner exercises over the structure: the owner is best placed to ensure its maintenance and manage the risks arising from it. The law places the residual risk linked to the state of the structure on the owner.
The concept of structure
Case law and doctrine define a structure as any immovable or movable thing permanently attached to the ground by human action. The following are considered structures within the meaning of art. 58 CO:
- Buildings and their elements (roofs, facades, balconies, interior and exterior staircases, ceilings)
- Technical installations (lifts, goods lifts, heating and ventilation systems)
- Traffic routes (roads, paths, pavements, bridges, passages)
- Civil engineering structures (dikes, tunnels, retaining walls)
- Sports and leisure facilities (swimming pools, playgrounds, grandstands)
- Certain movable objects permanently fixed (railings, fences, automatic gates)
Case law assesses on a case-by-case basis whether an object meets the definition. A simple movable object not fixed to the ground does not constitute a structure within the meaning of art. 58 CO.
Conditions of liability
The injured party invoking art. 58 CO must establish the cumulative fulfilment of four conditions:
| Condition | Content | Burden of proof |
|---|---|---|
| A structure | Immovable or movable thing permanently attached to the ground | Injured party |
| A defect | Construction or maintenance defect rendering the structure insufficiently safe | Injured party |
| Damage | Financial, physical or moral harm | Injured party |
| A causal link | The defect is the adequate cause of the damage | Injured party |
The owner's fault is not a condition of liability: the injured party does not have to prove it and the owner cannot rely on it to exonerate himself.
Construction or maintenance defect
A structure has a defect within the meaning of art. 58 CO when it does not provide the safety that can reasonably be expected in view of its purpose, age and circumstances. The concept covers two categories:
- Construction defect: imperfection existing from the outset, relating to the design, materials used or execution of the works (inadequate foundations, poor waterproofing, non-compliance with applicable construction standards).
- Maintenance defect: deterioration or hazard arising after construction and not remedied by the owner (an unfixed loose stair tread, missing or unstable handrail, slippery surface without adequate warning, untreated damaged roof).
The assessment of a defect is made objectively, with reference to what an ordinary user is entitled to expect from the structure. Technical standards (SIA, safety standards) constitute important indicators but are not in themselves decisive.
The concept of owner
The status of owner within the meaning of art. 58 CO is assessed according to the rules of property law. For immovables, the owner is the person registered in the land register as such. The usufructuary is not the owner of the structure within the meaning of this provision, even if the usufructuary has use of it.
Particular situations deserve attention:
- Condominium ownership (PPE): each co-owner is responsible for the parts that belong to them exclusively. For common parts, the community of co-owners is jointly and severally liable, each co-owner being responsible in proportion to their share.
- Estate (hoirie): heirs are jointly and severally liable for defects in the inherited property before partition.
- Fiduciary ownership or co-ownership: liability may be joint and several according to the rules applicable to the form of ownership.
Grounds for exoneration
Although art. 58 CO liability is causal, the owner may be released by establishing one of the recognised grounds for exoneration. Exoneration is strictly interpreted by the courts:
- Force majeure: an unforeseeable, irresistible and external event, such as a natural disaster of exceptional magnitude. An ordinary weather event does not constitute force majeure if the structure should have been designed to withstand it.
- Fault of the injured party: if the conduct of the injured party contributed to the realisation of the damage, the owner's liability may be reduced or eliminated, depending on the gravity of the fault (art. 44 para. 1 CO by analogy).
- Exclusive fault of a third party: if the damage is exclusively attributable to the conduct of a third party, the owner may be exonerated. This exoneration is only admitted if the third party's fault is the sole adequate cause of the damage.
Mere ignorance of the defect or delegation of maintenance to a third party (manager, caretaker, contractor) does not release the owner from liability towards the injured party.
Interaction with other grounds of liability
Art. 58 CO liability may coexist or concur with other statutory bases:
| Statutory basis | Basis | Particularity |
|---|---|---|
| Art. 58 CO | Strict liability of the building owner | No fault to prove; applies to any injured third party or contracting party |
| Art. 41 CO | Tortious liability (fault) | Applicable if fault on the part of the owner is also proved; may coexist with art. 58 CO |
| Art. 55 CO | Employer's liability for employees | If the structure belongs to a company and the damage is caused by an employee in the course of their duties |
| Art. 97 CO | Contractual liability | If the injured party is contractually linked to the owner (lease, construction contract); may be combined with art. 58 CO |
| Art. 368 CO | Contractor's warranty for defects in the work | Action by the employer against the contractor; relevant notably in the context of recourse (art. 58 para. 2 CO) |
The injured party may choose to act simultaneously on several statutory bases. The court applies the most favourable rule according to the circumstances.
Owner's recourse against third parties (art. 58 para. 2 CO)
Art. 58 para. 2 CO expressly reserves to the owner who has compensated the injured party the right to exercise a right of recourse against the persons responsible for the defect. This recourse may target:
- The contractor or construction company at the origin of the construction defect (on the basis of art. 368 CO or art. 41 CO)
- The architect or engineer whose design or supervision fault caused the defect
- The property manager or caretaker mandated for maintenance, if the defect results from a failure to fulfil their obligations
- Any other third party whose fault contributed to creating or maintaining the defect
This recourse is an important instrument in the field of construction defect warranties: the owner, while liable to the injured party, does not necessarily bear the final economic burden of the loss.
Limitation periods
Actions based on art. 58 CO are subject to the limitation rules of art. 60 CO, in the version resulting from the revision that entered into force on 1 January 2020:
| Type of damage | Relative period | Absolute period |
|---|---|---|
| Property and economic damage | 3 years from knowledge of the damage and the responsible person | 10 years from the damaging event |
| Personal injury (physical or psychological harm) | 3 years from knowledge of the damage and the responsible person | 20 years from the damaging event (since the 2020 revision) |
The relative 3-year period begins to run as soon as the injured party has effective knowledge of the damage, its extent and the identity of the responsible owner. The extension of the absolute period to 20 years for personal injury is intended in particular for harm resulting from harmful substances or materials (asbestos, etc.) which may manifest long after exposure.
Building liability insurance
In practice, the risk of art. 58 CO liability is covered by building public liability insurance (RC immeuble). This insurance, although not required by a general statutory rule, is:
- Commonly required by banks as a condition for mortgage financing
- Provided for in certain condominium regulations (PPE) as an obligation of the community
- Recommended for any owner exposed to a risk of damage to third parties (tenants, visitors, passers-by)
Building liability insurance covers in principle physical and property damage caused to third parties in connection with the state of the structure. It does not cover damage suffered by the owner himself nor, as a general rule, intentional damage. For condominium properties, the question of coverage of common parts must be verified in the PPE regulations and the insurance policy.
Building liability insurance usefully complements the legal analysis of the owner's situation, notably when acquiring a property or letting it.
Frequently asked questions on building owner liability
Does building owner liability require fault?
No. Art. 58 CO establishes causal (strict) liability, meaning liability without fault. The owner is liable to compensate for damage as soon as a construction or maintenance defect in the structure is the cause, regardless of any personal negligence on their part. The owner can only be exonerated by proving force majeure, fault of the injured party, or the exclusive fault of a third party.
What is meant by 'construction or maintenance defect'?
A structure has a defect when it does not provide the safety that can reasonably be expected given its purpose and condition. A construction defect refers to an initial imperfection (design, materials, execution). A maintenance defect refers to a lack of care following construction: absence of repairs, untreated deterioration, inadequate warning of a hazard. Both forms engage the owner's liability on the same statutory basis.
Can a tenant injured by a defect in a building take action against the owner?
Yes. The tenant may invoke art. 58 CO against the landlord-owner, even though they are linked by a lease agreement, because art. 58 CO is a basis of tortious liability independent from the contract. The tenant may also bring a contractual action (art. 97 CO) if the lease imposes on the landlord the obligation to maintain the property in good condition (art. 256 CO). Both actions may coexist.
Can the owner take recourse against the company that built the structure?
Yes. Art. 58 para. 2 CO expressly provides that the owner, after having compensated the injured party, retains a right of recourse against the persons responsible for the defect: contractor, architect, engineer, subcontractors. This action is generally based on the contractor's contractual liability (art. 368 CO for defects in the work) or on fault-based liability (art. 41 CO). The limitation period for the recourse action runs in principle from the date of payment of the compensation.
What is the difference between art. 58 CO and art. 41 CO?
Art. 41 CO is the classic tortious liability: it requires proof of fault by the responsible party, damage, and a causal link. Art. 58 CO is a causal (objective) liability: the injured party does not have to prove the owner's fault, only the existence of a structure, a defect, damage, and the causal link. Art. 58 CO is therefore more favourable to the injured party. Both bases may coexist if fault on the part of the owner is also demonstrated.