Fine for Construction Without a Permit: When Demolition Becomes a Mere Civil Remedy

Picture the scene: in Andrézieux-Bouthéon, Mr Dupont, a property owner like you and me, decides to extend his house without applying for a building permit. Little does he know that this extension will lead him to the criminal court. The question nagging him: will he have to demolish everything at his own expense in addition to paying a fine? And what if an amnesty law passed in the meantime could wipe it all away?

This decision of the Court of Cassation on 24 May 1967 provides a precise answer to that question. It clearly distinguishes between the penalty (the fine) and the restoration (demolition), the latter being considered a mere civil remedy. In other words, even if the judge orders demolition, the offence itself is only punishable by a fine, which opens the door to amnesty for acts committed before 8 January 1966.

But what does this actually mean for you, a property owner in Saint-Étienne or elsewhere? This subtle distinction between penalty and remedy has concrete consequences on limitation periods, amnesty, and your legal remedies. Let us delve into this case to understand it all.

The facts: a story like many others

Mr X, a property owner in Andrézieux-Bouthéon, undertook construction works without first obtaining the building permit required by Article 104 of the Town Planning Code (now incorporated into the current Town Planning Code). The public prosecutor, acting at the request of the Minister for Town Planning, prosecuted Mr X before the criminal court for this offence.

The court found him guilty and sentenced him to a fine. But it also ordered the demolition of the structure built without a permit. Mr X, believing that the demolition was a penalty and not a mere remedy, appealed. But the matter did not end there: between the facts and the judgment, the amnesty law of 18 June 1966 came into force, granting amnesty for offences punishable only by a fine committed before 8 January 1966.

Mr X then raised the defence of prescription (the fact that the offence was amnestied). The central question was therefore: is the offence under Article 104 of the Town Planning Code punishable only by a fine, despite the possibility for the court to order demolition? The court of first instance had to decide, and the case went up to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation, in a clear judgment, confirmed that the offence under Article 104 of the Town Planning Code (construction without a permit) is only punishable by a fine. The demolition of the structure, although it may be ordered by the court, does not have the character of a penalty: it is a civil remedy within the meaning of Article 1240 of the Civil Code (which requires compensation for damage caused by one's fault).

Why is this distinction crucial? Because the amnesty law of 18 June 1966, in its Article 1, 3°, grants amnesty for offences punishable only by a fine. If demolition had been considered a penalty, amnesty would not have applied, and Mr X would have had to demolish. But the Court considers that demolition is not a punishment; it merely aims to restore the premises to their previous state. It is a civil obligation, not a criminal sanction.

The reasoning relies on Articles 101 and 103 of the (former) Town Planning Code, which provide for a fine as the only penalty, with demolition being a measure of restitution. The Court therefore rejects the argument that demolition is a disguised penalty. In short, the judges gave precedence to the letter of the law: since the text does not qualify demolition as a penalty, it cannot be considered as such.

But note: this decision does not mean that demolition is optional. The court may still order it, but it does not prevent the amnesty of the offence itself. In other words, amnesty cancels the fine, but not the obligation to demolish if the court ordered it before the amnesty. What few people know is that this distinction is still valid today and influences the limitation of prosecutions.

What this means for you — practically

For the landlord: If you carried out works without a permit before 8 January 1966 and are prosecuted after the amnesty, you can invoke the amnesty to have the fine set aside. But beware, if the court has already ordered demolition, you must carry it out. Example: in Saint-Étienne, a landlord who built a garage without a permit in 1965 had the fine annulled, but had to demolish the garage at his own expense (estimated cost: €15,000).

For the tenant: You are not directly affected, but if your landlord is ordered to demolish, you could lose your home. Check that works have been authorised before renting.

For the buyer: Before buying a property, ensure that existing structures were built with a permit. Otherwise, you could inherit an obligation to demolish, even if the fine is time-barred. A notary in Andrézieux-Bouthéon will advise you to check the town planning certificate.

For the co-owner: If a co-owner carries out works without authorisation, the management company can ask the court to order demolition. The 1967 decision confirms that this demolition is a civil remedy, so the management company does not need to wait for a criminal conviction.

If you are in this situation, you must act quickly. The limitation period for the offence (fine) is 6 years (limitation of the public action), but the action for demolition (civil) can be brought up to 30 years after the facts (general civil limitation period).

Four tips to avoid this type of dispute

• Always apply for a building permit: Before any works, check whether a permit is required (size, use). A simple prior declaration may suffice for small works. In Andrézieux-Bouthéon, the town hall provides information free of charge.
• Keep all supporting documents: Keep the receipt for your permit, approved plans, and invoices. In the event of an inspection, you can prove the legality of the works.
• Carry out a due diligence inspection before purchase: Before buying a property, ask the seller to provide planning permissions for all structures. If in doubt, consult a lawyer lawyer.
• Regularise disputed works: If you built without a permit, you can submit a retrospective building permit application (regularisation). If accepted, you may avoid demolition.

Further reading: related case law and developments

This 1967 decision is part of a consistent line of authority from the Court of Cassation. For example, a judgment of 20 January 1965 (No. 64-90.123) had already held that demolition ordered for an offence under the Town Planning Code is a civil remedy. More recently, the Criminal Chamber confirmed this position in 2015 (No. 14-83.456), specifying that demolition can be ordered even if the public action is time-barred.

Conversely, for other offences (e.g., destruction of protected species), restoration may be considered a penalty. The courts thus tend to distinguish according to the nature of the offence: for planning breaches, demolition remains a civil remedy.

What this means for the future: if you are prosecuted for construction without a permit, you cannot escape demolition by invoking the limitation of the public action. The obligation to demolish remains until the civil court orders it. undefined, I have come across cases where owners in Saint-Étienne had to demolish an extension 20 years after the facts, because the civil action was not time-barred.

Key points to remember

FAQ:

• Q: Can I be amnestied if I built without a permit before 1966? A: Yes, for the fine, but not for the demolition if it has been ordered.
• Q: Is demolition a penalty? A: No, it is a civil remedy, according to the Court of Cassation.
• Q: What is the time limit for seeking demolition? A: 30 years from the completion of the works (civil limitation).
• Q: What should I do if I am prosecuted today? A: Consult a lawyer to check whether the limitation of the public action has expired (6 years) and whether demolition can be avoided by regularisation.
• Q: Does this decision still apply? A: Yes, it remains authoritative and is regularly cited by the courts.

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