Building permit refused: how to prove force majeure?

You have just acquired a plot of land in Sotteville-lès-Rouen, with the firm intention of building your house there. To lighten the bill, you benefited from a reduced rate on the transfer duties at purchase, on condition that you carry out the works within four years. But the works are not progressing, and the tax authorities are claiming a supplement from you. What can you do? This decision of the Court of Cassation, handed down in 1970 but still relevant today, answers a crucial question: who must prove that the refusal of a building permit constitutes a case of force majeure?

Imagine the scene: you have planned everything, but an unforeseen event occurs – a refusal of a building permit, a lender withdrawing. Article 1371 of the General Tax Code (CGI) is clear: to retain the reduced rate, you must justify the completion of the works within the four-year period, unless there is a case of force majeure. But be careful, the burden of proof rests with you. And if you do not provide this proof, the tax adjustment will apply.

In this case, Mr Serra, a property owner in Fécamp, had bought a plot of land benefiting from reduced duties. He did not build within the time limits and invoked the refusal of the building permit as force majeure. Problem: he did not prove this refusal. The Court of Cassation confirmed the rejection of his claim. A lesson for any purchaser.

The facts: a story like any other

Mr Serra, a property owner in Sotteville-lès-Rouen, acquired a plot of land in 1962. The deed of purchase mentions an undertaking to build dwellings within four years, in accordance with Article 1371 of the CGI. In return, he paid transfer duties at a reduced rate. But the years passed, and nothing was built. In 1967, the tax authorities claimed a supplement from him, considering that the works had not been carried out.

Mr Serra contested this. He explained that his building permit had been refused, and that he could not obtain a bank loan. He requested the remission (cancellation) of the supplement. The court of Rouen dismissed his claim in 1969, ruling that he had not proved the refusal of the permit. Mr Serra appealed to the Court of Cassation.

Before the Court of Cassation, he argued that the documents provided – in particular a letter from the town hall – proved the refusal. But the Court considered that it was for him to provide the proof, and that the lower courts had sovereignly assessed that this proof had not been provided. The appeal was dismissed. A harsh outcome, but logical in law.

The reasoning of the court — dissected

The Court of Cassation recalls the principle set out in Article 1371 of the CGI: the benefit of the reduced rate is subject to two cumulative conditions. On the one hand, the undertaking given in the deed of acquisition to build residential accommodation within a period of four years. On the other hand, the justification, within that same period, of the execution of the works – except in cases of force majeure (an unforeseeable, irresistible and external event).

In this case, Mr Serra did not build. He invokes a case of force majeure: the refusal of a building permit. But the Court notes that he does not provide proof of this refusal. The documents he produces – correspondence with the town hall – are considered insufficient by the lower courts. The Court of Cassation, as a court of law and not of fact, cannot challenge this sovereign assessment.

This decision confirms constant case law: the burden of proof of force majeure lies with the person invoking it. It is a common-sense rule: it is up to you, the taxpayer, to demonstrate that you are not responsible for the delay. If you fail, the administration can legitimately claim the supplement.

What this means for you — concretely

If you are a purchaser of building land with an undertaking to build, you must absolutely keep all evidence of your steps. A refusal of a building permit? Keep the written decision from the town hall. A lender withdrawing? Keep their letters. Without these documents, you risk losing the benefit of the reduced rate.

Let's take a concrete example in Fécamp. You buy a plot of land for €100,000. The transfer duties normally applicable amount to 5.80% (i.e. €5,800). With the reduced rate, you only pay 0.715% (i.e. €715). If you do not build within four years and do not prove force majeure, the administration will claim the difference: €5,085, plus late payment interest.

For landlord owners, same logic. If you promise to build rental accommodation, meet your deadlines. An unjustified delay can be costly. Tenants are not directly concerned, but they may suffer the consequences of an abandoned project.

Four tips to avoid this type of dispute

• Keep all administrative documents: as soon as you file your permit application, keep the receipts, the town hall's letters, and especially the decision of refusal if it occurs. Without written proof, your force majeure argument will be weak.
• Strictly respect the four-year deadline: even if the works are delayed, start the foundations before the deadline. A simple declaration of commencement of works may suffice to demonstrate the start of execution.
• Anticipate obstacles: before buying, check the local urban plan (PLU) and easements. A permit refusal is often predictable. If the land is unbuildable, it is better to renounce the purchase rather than bet on an appeal.
• Consult a lawyer as soon as difficulties arise: if you receive a notice of adjustment, do not delay. A professional can assess your chances and help you gather the necessary evidence. A quick consultation can avoid lengthy and costly litigation.

Further details: related case law and developments

This 1970 decision is part of a consistent line. In an earlier judgment of 12 February 1965 (No. 63-10.452), the Court of Cassation had already ruled that force majeure must be proved by the person invoking it. More recently, case law has clarified that a simple refusal of a permit does not automatically constitute force majeure: it is still necessary that the permit was legally possible and that the refusal was abusive or unforeseeable.

The trend of the courts is to be demanding on proof. The lower courts verify whether the taxpayer has taken all necessary steps. For example, if you did not appeal against the permit refusal, you cannot invoke force majeure. This strictness aims to avoid abuses and to guarantee the effectiveness of the building undertaking.

For the future, nothing indicates a relaxation. On the contrary, with fiscal pressure, the administration will be all the more vigilant. The best advice therefore remains to plan and document each step.

Summary and next steps

FAQ:

• Can I challenge a refusal of a building permit to avoid the adjustment? Yes, but you must bring a contentious appeal within two months. If you obtain the annulment of the refusal, you can then justify a case of force majeure.
• What if I have already received a notice of adjustment? You can bring the matter before the administrative court within two months of notification. But prepare your evidence: without convincing documents, your chances are slim.
• What is the amount of the adjustment? It corresponds to the difference between the reduced rate and the normal rate, increased by late payment interest (0.20% per month).
• Can I request an additional time to build? The tax administration may grant an exceptional extension, but this is rare. It is better to request an extension before the expiry of the four years.
• Is a lawyer mandatory? No, but strongly recommended. Tax litigation is technical, and a procedural error can be fatal.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →