Penalty payment for demolition: what the Court of Cassation changed for owners (and neighbours)

Imagine the scene: you live in Bandol, in a pretty villa with a sea view. One day, your neighbour carries out extension works without permission. You sue him in court to obtain demolition. The court finds in your favour and orders your neighbour to demolish, under a penalty payment of €100 per day of delay. But there it is: your neighbour drags his feet, and the penalty payment accumulates. How much can he owe at most? How far can the judge go? This is precisely the question the Court of Cassation decided in its judgment of 19 September 2019. A decision that clarifies the rules and has concrete consequences for all owners, whether they are claimants or defendants in a dispute over unlawful building. Analysis.

The facts: a story like those that happen every day

Mr A., an owner in Bandol, built a building of four flats on his land without complying with town planning rules. His neighbours, exasperated by this illegal building, sued him before the Tribunal de grande instance of Toulon to obtain demolition on the basis of Article L. 480-13 of the Town Planning Code (which allows a neighbour of a builder without a permit to seek demolition). In 2014, the civil court ordered Mr A. to demolish the structure, under a provisional penalty payment of €50 per day of delay, then a final penalty payment of €100 per day from a certain date. Mr A. appealed, but the Court of Appeal of Aix-en-Provence upheld the order in 2016. Seised of an appeal in cassation, Mr A. argued that the civil penalty payment should be governed by the same rules as the criminal penalty payment provided for in Article L. 480-7 of the Town Planning Code (which caps the penalty payment at €5,000 per month). But the Court of Cassation rejected his argument. It held that the penalty payment imposed by the civil judge is a measure of enforcement, governed by Articles L. 131-1 to L. 131-4 of the Code of Civil Enforcement Procedures, and not by the criminal provisions of Article L. 480-7. In other words, the civil judge sets the penalty payment freely, without a statutory cap, according to the seriousness of the situation and the debtor's capacity.

The court's reasoning — analysed

To understand this decision, one must distinguish two types of penalty payments: criminal penalty payments and civil penalty payments. The criminal penalty payment (Article L. 480-7 of the Town Planning Code) is imposed by the criminal judge when he convicts a builder for a town planning offence (e.g., building without a permit). This penalty payment is capped at €5,000 per month, and its proceeds are paid into the state budget. The civil penalty payment, on the other hand, is imposed by the civil judge to compel the debtor to perform an obligation (e.g., demolish). It is governed by Articles L. 131-1 to L. 131-4 of the Code of Civil Enforcement Procedures (CPCE). According to these provisions, the judge freely sets the amount of the penalty payment (provisional or final) and may even provide that it will start to run from a specified date. No cap is provided. In this case, Mr A. had been ordered by the civil judge, not the criminal judge. The Court of Cassation therefore logically ruled out the application of Article L. 480-7, reserved for criminal penalty payments. In so doing, it confirmed previous case law (Cass. 3e civ., 4 March 2009, No. 07-21.148) and clarified that the civil judge is not bound by criminal limits. However, note: if the civil judge had wished to refer to Article L. 480-7, he could have done so by analogy, but he was not obliged to. In short, the Court of Cassation said: 'Civil penalty payments are a civil matter, full stop.'

What this changes for you — concretely

For the neighbour owner (the claimant for demolition): you can obtain a deterrent penalty payment, without a cap. For example, if your neighbour in La Garde builds a party wall without permission, you can ask the civil judge for a penalty payment of €200 per day of delay, or even more if the situation justifies it. The total amount can quickly reach considerable sums (example: €200/day × 365 days = €73,000 per year). For the owner ordered to demolish (the defendant): the risk is higher than with a capped criminal penalty payment. If you delay in demolishing, the penalty payment can become exorbitant. undefined, I have come across cases where the penalty payment reached €50,000 after a year, leading the debtor to sell his property to pay. What few people know is that the final penalty payment can be liquidated (i.e., converted into a sum of money due) by the enforcement judge, and the creditor can then seize the debtor's assets. For the tenant or buyer: if you rent or buy a property that is subject to demolition proceedings, you are exposed to the same risk. Check before signing whether a demolition action is pending. In practice, if you are ordered to demolish, you must execute the decision quickly. The ideal is to negotiate a deadline with the neighbour or to regularise the building if possible (obtain a retrospective building permit). But caution: regularisation is not always possible, especially if the building violates the local town planning plan (PLU).

Four tips to avoid this type of dispute

• Before building, check your building permit: ensure your project complies with the PLU of your municipality (for example, in La Garde, the rules on height and distance from boundaries). A quick look at the cadastre and the PLU can save you years of litigation.
• If you are a neighbour, act quickly: as soon as you notice suspicious works, send a registered letter to the mayor to inform him. At the same time, contact a lawyer to assess the possibility of an interim application (urgency) or an action on the merits. The longer you wait, the more the construction progresses and the harder it will be to obtain demolition.
• Negotiate a settlement before trial: if you are the owner of an irregular building, try to reach an agreement with your neighbour (for example, buy an easement or modify the construction). A settlement signed before a notary can avoid a costly and uncertain trial.
• If you are ordered to demolish, execute without delay: once the demolition order is made, do not delay. The penalty payment runs from the day after the deadline set by the judge. Use a project manager or architect to estimate the demolition works and carry them out as soon as possible. You can also ask the judge for an additional deadline if you can justify serious difficulties (bad weather, lack of contractor, etc.).

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further detail: related case law and developments

This decision is part of a line of consistent case law. Already in 2009 (Cass. 3e civ., 4 March 2009, No. 07-21.148), the Court of Cassation had held that the civil penalty payment for demolition was not subject to the cap of Article L. 480-7. More recently, the Court of Appeal of Versailles (5 July 2022, No. 21/00958) liquidated a penalty payment at €120,000 for non-execution of a demolition, confirming the sovereign power of the civil judge. The trend is therefore clear: civil judges do not hesitate to set high penalty payments to put pressure on recalcitrant builders. However, note: since the ALUR law of 2014, the criminal judge can also impose a civil penalty payment in the context of a public prosecution, but this only concerns criminal offences. In practice, for disputes between neighbours, it is the civil judge who remains competent. What this means for the future: owners must be even more vigilant, because the cost of an illegal building can be very heavy, far beyond the simple criminal cap.

Summary and next steps

FAQ:

1. What is the difference between a criminal and a civil penalty payment? The criminal penalty payment is capped at €5,000/month and aims to punish the offence; the civil penalty payment has no cap and aims to compel execution of a court decision (e.g., demolish).
2. Can I request a civil penalty payment if my neighbour builds without a permit? Yes, if you sue him before the civil court (TGI/TJ) on the basis of Article L. 480-13 of the Town Planning Code. You can seek demolition under a penalty payment.
3. What is the typical amount of a civil penalty payment? The judge sets the amount according to the seriousness, the debtor's resistance and his financial capacity. In the Toulon area, I have seen penalty payments of €50 to €300 per day.
4. What should I do if I am ordered to demolish? Execute the decision within the deadlines. If you cannot, ask the enforcement judge for a grace period (maximum 2 years under Article 1343-5 of the Civil Code).
5. Can I regularise my building after a court order? Yes, if the building complies with current town planning rules. But this does not exempt you from the penalty payment already incurred. It is better to regularise before the trial.

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