Defunct Schedule of Conditions: Can it Still Apply Between Neighbours?

Imagine the scene: you are the owner of a property in Rive-de-Gier, in the Loire département. Your neighbour installs a pool equipment shelter on the boundary of the property, which extends above your privacy screen. You ask him to comply with the schedule of conditions of the former development zone (ZAC) where your housing estate is located, but this document has lapsed since the ZAC was abolished by the municipality. Is the schedule of conditions now a dead letter?

The Cour de cassation answered this question on 4 March 2021 (No. 19-22.987). And its answer is valuable for all those who, like you, inherit old planning rules that are useful for preserving the peace of their neighbourhood.

In short: the legal lapse of the schedule of conditions does not prevent its stipulations from continuing to apply between owners who have consented to them, especially if they have been incorporated into the sale deed. A solution that protects freely undertaken commitments, even when the administration turns a new page.

The Facts: A Story That Happens Every Day

Mr and Mrs O. are owners of a plot in a development zone (ZAC) in Saint-Chamond. Their land is subject to a schedule of conditions for the transfer of land, which in particular requires that buildings respect certain distances from the boundaries. However, the municipality abolished the ZAC, causing the schedule of conditions to lapse by operation of law.

One day, their neighbours build a pool equipment shelter on the boundary of the property. This shelter, with a ground surface area of less than 5 m², exceeds the height of the privacy screen installed by the O. couple. The O. couple feel aggrieved: according to the schedule of conditions, this construction should not have been permitted without their consent, or at least should have been set back. They sue their neighbours.

The Court of Appeal rules against them. Reason: the schedule of conditions is lapsed since the abolition of the ZAC. It cannot therefore create any contractual obligation. The O. couple appeal to the Cour de cassation. They argue that, even if the document is lapsed, the parties have incorporated its stipulations into their respective sale deeds, which gives them a contractual nature. The Cour de cassation rules in their favour: it quashes the Court of Appeal's decision, holding that the lower court should have considered whether the reproduction of the stipulations in the sale deed evidenced the parties' intention to make them contractual, by way of a stipulation for the benefit of a third party.

The Reasoning of the Court — Analysed

The central question was this: can a schedule of conditions for a ZAC, which has become lapsed by operation of law (Article L. 311-6 of the French Planning Code), still produce effects between owners who have accepted it?

The Cour de cassation answers yes, provided that the parties have manifested their intention to give it a contractual character. This intention may result from the reproduction, in the sale deed, of the clauses of the schedule of conditions. This is referred to as a stipulation for the benefit of a third party: each owner undertakes not only towards his seller, but also towards all the owners of the housing estate, who may require compliance with the rules.

The lower court judges had made a mistake: they had considered that the legal lapse nullified any binding force, including between the parties. However, the Cour de cassation recalls that contract law (Article 1103 of the French Civil Code) prevails: what is freely agreed between private individuals must be respected, independently of the fate of the administrative document.

In practice, this means that even if the ZAC is abolished, the owners remain bound by the rules they have accepted in their sale deed. Successive purchasers are also bound, because they bought with full knowledge (they saw the deed incorporating the schedule of conditions).

This is a confirmation of earlier case law: the Cour de cassation had already held (Civ. 3e, 12 July 2018, No. 17-20.867) that the stipulations of a schedule of conditions for a housing estate could survive its lapse if they had been contractualised. Here, it extends this principle to schedules of conditions for ZACs.

What This Changes for You — Concretely

This decision has very concrete practical implications for owners of properties located in an abolished ZAC, but also for buyers, sellers and co-owners.

If you are an owner in a former ZAC (like in Saint-Chamond or Rive-de-Gier), check your sale deed: if it reproduces the clauses of the schedule of conditions, you can require your neighbours to comply with them. Even if the ZAC has disappeared, these clauses remain contractually valid. You can therefore, for example, challenge a construction that does not respect the prescribed distances.

If you are a buyer, ask your notary to check whether the sale deed incorporates the schedule of conditions. If so, you will be bound by these rules, even if the ZAC no longer exists. Do not overlook this aspect: an easement of view or an obligation not to build on the boundary can affect the value of the property.

Concrete example: in Saint-Chamond, an owner had to demolish a garden shed built on the boundary, because the sale deed required a setback of 3 metres. The cost of demolition: €2,500. Without this case law, he would not have been able to act. Another example: a property developer in Rive-de-Gier had to modify his project of 12 dwellings to comply with maximum heights derived from a lapsed schedule of conditions, but incorporated into the deeds. The additional cost: approximately €15,000.

If you are a seller, clearly mention in the preliminary sale agreement that the property is subject to a schedule of conditions for a ZAC, even if lapsed, and reproduce the essential clauses. This will avoid any subsequent dispute over the scope of the obligations.

If you are a tenant, you are not directly concerned, but your landlord may be required to comply with these rules. If you have a project involving works, check with him about any potential constraints.

Finally, a piece of advice: if you are in a dispute with a neighbour over compliance with these rules, do not wait. The limitation period for an action for contractual liability is 5 years from the construction in question. After this period, you will no longer be able to act.

Four Tips to Avoid This Type of Dispute

• Consult your sale deed as soon as you receive the keys. Check whether the schedule of conditions for the ZAC is reproduced therein, even partially. This is the key to knowing which rules apply between you and your neighbours.
• Before buying land in a former ZAC, ask your notary to provide you with the original schedule of conditions. Even if lapsed, it may contain important clauses (heights, distances, use). Have them appended to the preliminary sale agreement so that they become contractual.
• If you are planning a construction project, inform your neighbours in writing of the planned works. This will allow you to know if they invoke the schedule of conditions. If so, you can discuss an amicable agreement before incurring costs.
• If a neighbour builds in violation of the schedule of conditions, act quickly. Send him a registered letter with acknowledgement of receipt mentioning the clauses violated. If there is no response within 3 months, bring the matter before the judicial court (interim proceedings are possible to stop the nuisance).

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

Further Analysis: Related Case Law and Developments

The decision of 4 March 2021 is part of a line of decisions protecting contractual undertakings. Already in 2018, the Cour de cassation had held (Civ. 3e, 12 July 2018, No. 17-20.867) that clauses of a lapsed schedule of conditions for a housing estate could survive if they were incorporated into sale deeds. Here, it extends this principle to ZACs, which are development zones created by local authorities.

An earlier decision (Civ. 3e, 23 November 2017, No. 16-24.654) had already held that the lapse of a local land use plan (POS) did not affect conventional easements. There is therefore a jurisprudential trend to distinguish the administrative fate of a document (lapse, repeal) from its contractual fate between the parties.

For the future, this case law could apply to other planning documents such as local urban plans (PLU) or territorial coherence schemes (SCoT), if their provisions are incorporated into sale deeds. Notaries and lawyers thus become key players in securing these clauses.

Caution, however: the burden of proof lies on the party invoking the contractual character. It must be demonstrated that the parties actually intended to incorporate the stipulations. A mere mention in an earlier sale deed is not always sufficient; a direct link with the current purchaser is required. Advice: have an addendum to your sale deed signed if you want your neighbour to be bound.

Checklist Before Acting

What to do if you want to enforce a lapsed schedule of conditions:

1. ☐ Gather the documents: your sale deed, your neighbour's sale deed (if possible), the original schedule of conditions (even if lapsed).
2. ☐ Check whether the sale deed reproduces the disputed clauses. If so, these clauses are contractual. Take a copy of the relevant pages.
3. ☐ Send a formal notice by registered letter to your neighbour, citing the clause violated and requesting rectification within 30 days. Keep a copy.
4. ☐ Consult a lawyer specialising in property law (such as Maître Zakine) to assess the strength of your case. A quick consultation may save you an expensive trial.
5. ☐ If no amicable solution, bring an interim application before the judicial court to obtain an urgent measure (cessation of works, demolition). The time to obtain an interim order is generally 2 to 4 months.

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