Homeowners must prove they took steps to stop drought cracking, French court rules

The owner of a home in south-west France that experienced crack damage due to drought should not be compensated by his insurer as he did not prove he took ‘preventative measures’ against it, France’s highest judicial court has ruled.

The Cour de cassation overturned a ruling from the Nîmes appeal court on a €40,000 insurance dispute, setting a precedent for future cases. 

The landmark ruling may affect future claimants and embolden insurance companies to deny claims. Rulings from the court, France’s highest judicial body, set the tone for future cases and are upheld as standard bearers for new cases, particularly if rules are not in one of France’s legal codes. 

Property owners should now ensure they take ‘usual preventative measures’ to be eligible for compensation under the catastrophe naturelle claims policy in the event a property sees fissures appear following a drought.

Critics have argued that the ‘preventative measures’ are unclear.

Millions of homes across France, particularly in the south-west and central areas, are at risk of cracks appearing due to clay soil that properties are built on expanding and shrinking during periods of drought and ensuing rainfall. 

Property owners must be proactive

The case covered a dispute between a homeowner in the Gard department and his insurance company. 

In 2015, he took out home insurance on the property, and in 2016 his commune suffered drought. 

The local commune successfully appealed for a catastrophe naturelle designation for the area, allowing homeowners that had seen cracks appear in their property claim for compensation using the scheme. 

The process, used in cases of property damage following a natural disaster, provides quicker compensation and a streamlined claims process. 

The homeowner ended up in a dispute with his insurer, who initially did not offer to pay for the damages, and took legal action. 

Nîmes’ appeals court sided with the owner in 2024 and said that “the cracks attributed by experts to differential settlement are presumed to have appeared after the date the insurance contract was signed." 

They could "only be definitively attributed to a cause external to the construction, and in this case, to the episodes of exceptional drought,” it added. 

However, the insurer argued that the usual preventative measures had not been carried out by the homeowner and appealed to the Cour de cassation, who overturned the initial ruling from Nîmes.

The judicial court stated that the burden of proof was on the owner to show that he had taken preventative measures to prevent the cracks from occurring in the first place, and that simply attributing the damage to a natural event was insufficient proof.  

Insurers must only pay out for crack damage in cases where "direct, uninsurable material damages whose determining cause is the abnormal intensity of a natural agent are considered to be the effects of natural disasters.”

In short, this means catastrophe naturelle coverage can only be claimed when a natural agent – in this case, clay soil – shrinks and expands specifically due to a drought. 

However, insurers only need to provide this in cases “where the usual measures taken to prevent such damage could not prevent its occurrence or could not be implemented.” 

“It is up to the insured, claimant for compensation, to provide proof that he has fulfilled this obligation or that such measures were impossible,” said Paris lawyer Hassan Kohen on his website in a post about the case. 

The ruling is a “strict interpretation of the legal conditions for coverage. It reiterates that simply attributing damage to an abnormally intense natural event is insufficient,” he added. 

What are these preventative measures? 

“No one tells homeowners what measures to take. No national standard defines what constitutes a 'usual preventative measure.' You are asked to comply with a rule that no one has ever explained to you,” said co-founder of clay shrinkage help company TerraStab Philippe Isselin to Le Figaro. 

“This ruling marks a turning point. Prevention is no longer a choice but a legal requirement for compensation,” Mr Isselin added. 

As mentioned, there are no official national requirements in the matter, but experts in the sector offer best practices to both minimise the risk of damage – and now seemingly ensure insurance claims can be made. 

Prevention revolves around three main axes, states the TerraStab website: good water management, vegetation controls, and early detection. 

Water management consists of ensuring soil around the property does not experience large changes in moisture content (as is the case through periods of drought and rainfall). 

Owners should ensure they minimise the risk of sudden influxes of water directly onto the soil (heavy rainfall, leaks, etc) and that water is evenly spread across land surrounding the property when it does fall. However, they should also ensure that soil does not dry up completely and maintains a stable moisture level. 

Vegetation around the property should be well-maintained to avoid deep roots impacting the property’s stability.

Other tips include: 

• Clean gutters and downspouts twice a year

• Install a perimeter drain if the land is sloping

• Plant shrubs with moderate root systems

• Monitor for cracks with plaster telltales

• Maintain a safe distance (≥ 5m) between trees and foundations. 

• Ventilate the crawl space if present

• Slope your garden slightly to direct water away from foundations 

• Do not fully waterproof your garden but use permeable materials

Note that some trees need to be further away from a property as their roots are more dangerous. For example, a 20-metre high oak tree can take water from up to 30m away from its trunk due to strong roots, further weakening properties nearby. 

Regularly check the outside of your home for cracks, making detailed notes if they appear and then checking on them after a couple of months to see how they have changed. 

Increase the frequency of checks during droughts, and check for pre-emptive signs of drought damage around your property (cracks appearing in the soil near your home, vegetation becoming discoloured due to a lack of water in the ground, etc). 

Finally, it is worth checking with your insurer before taking out a policy if they have a specific checklist of ‘preventative measures’ they recommend. This can be particularly useful when making a catastrophe naturelle claim to prove you have followed requirements.