Free Transfer of Land: When Can the Town Hall Require It?

Imagine: you are the owner of a house in Guebwiller, with a garden that runs along the street. One day, the town hall informs you that, to widen the road, you must transfer to it free of charge a 95 m² strip of your land. Without financial compensation. Surprise, anger, sense of injustice… This situation has been experienced by hundreds of owners. But does the law protect you?

The question is simple: can a municipality require the free transfer of part of your plot solely because it is located along a public road? The answer is nuanced, and this is where the decision of the Court of Cassation of 29 April 1986 (No. 85-70.079) comes in.

This judgment, rendered in a dispute between the City of Paris and an owner, sets a clear rule: the free transfer provided for in Article R.332-15 of the Town Planning Code can only be imposed if it appears in the planning permission. In other words, if you do not have planning permission, or if the permission does not mention this transfer, the town hall cannot require it. Essential protection, but you still need to know your rights.

The Facts: A Story Like Those That Happen Every Day

The case begins in Paris, but it could just as easily take place in Wittenheim or Guebwiller. An owner, whom we will call Mr. Dupont, owns a plot of land in an urban zone. The City of Paris decides to carry out an alignment (i.e., a rectification of the boundary of the public road) and considers that a 95 m² strip of his land must be incorporated into the road. On the basis of Article R.332-15 of the Town Planning Code, the City requires the free transfer of this strip, without any compensation.

Mr. Dupont contests. He refuses to transfer his land free of charge, arguing that the transfer was not imposed on him as part of a planning permission. He takes the matter to court, which finds in his favour at first instance. The City of Paris appeals. The Paris Court of Appeal, in a judgment of 8 November 1984, upholds the decision: it rejects the City's claim and fixes a land compensation for the expropriated plot.

The City appeals to the Court of Cassation. It argues that Article R.332-15 allows the free transfer to be imposed without the condition of planning permission. But the Court of Cassation does not follow it. In its judgment of 29 April 1986, it dismisses the appeal and confirms that the free transfer can only be validly imposed if it appears in the planning permission. Without this mention, the owner is entitled to compensation.

The Reasoning of the Court — Dissected

To understand the judgment, we must first dissect Article R.332-15 of the Town Planning Code. This text, in its version applicable at the time, provided that planning permission could make the grant of permission subject to the free transfer of land intended for public roads. In other words, if you apply for planning permission to build, the town hall can say to you: 'OK, but in exchange, you give me a strip of land for the road for free.'

But the City of Paris interpreted this text extensively: according to it, the free transfer could be required even in the absence of planning permission, as long as the land was affected by an alignment. The Court of Cassation said no. It recalled that the text refers to 'planning permission' and that the transfer must be mentioned in it. In short, if you are not building, or if your permission does not mention this transfer, the town hall cannot force you to give away your land for free.

What few people know is that this decision is part of a logic of protecting private property. The free transfer is an exception to the principle that any expropriation must give rise to compensation (Article 545 of the Civil Code). The judges therefore interpreted this exception strictly: for it to apply, the owner must derive an advantage from the planning permission (the right to build) in return for the transfer. Without this advantage, the transfer becomes a disguised expropriation, which the law does not allow.

However, note: the judgment does not say that the free transfer is impossible outside the planning permission. It says that it cannot be imposed by the administration. If the owner voluntarily agrees to transfer his land free of charge, nothing prevents him from doing so. But it is a choice, not an obligation.

What This Changes for You — Concretely

This decision has direct implications for all landowners, whether in Guebwiller, Wittenheim or elsewhere. Here is what you need to know.

If you are the owner of a plot located along a public road: the town hall can request a free transfer only if you apply for planning permission. And even then, this transfer must be expressly mentioned in the permission. For example, if you want to build a house in Wittenheim and the town hall imposes on you to transfer 50 m² to widen the street, check that this condition appears in the planning permission order. If not, you can refuse and demand compensation.

If you are a buyer: before buying land, check whether planning permission has been granted with a condition of free transfer. Otherwise, you could be exposed to a request from the town hall after the purchase. undefined, I have come across cases where owners had to pay years after acquisition because the transfer had not been formalised.

If you are a tenant or co-owner: this decision indirectly concerns you. For example, if your co-ownership is located on the edge of a road, the town hall might try to obtain a free transfer over the common parts. Without ongoing planning permission, it cannot impose it. But be careful: if the co-ownership has ongoing planning permission (for works), the transfer could be required.

A concrete example: in Guebwiller, a building plot is worth around €150/m². A free transfer of 95 m² therefore represents a loss of €14,250. Without this decision, the owner would have lost this sum without compensation. Thanks to the judgment, he can demand payment of this value or refuse the transfer if the permission is not involved.

Four Tips to Avoid This Type of Dispute

• Check your planning permission before accepting a transfer: if the town hall asks you for a free transfer, insist that it be mentioned in the permission. If the permission has already been granted and does not mention it, you are not obliged to transfer.
• Consult the Local Town Planning Plan (PLU): the PLU may provide for reserved sites for public roads. If your land is affected, the town hall can expropriate it, but with compensation. Do not confuse free transfer with reserved site.
• Hire a surveyor before buying: a precise boundary survey will allow you to know the exact limits of your land and anticipate alignment requests. A surveyor in Wittenheim costs around €800, but can save you a dispute worth several thousand euros.
• Keep all administrative documents: planning permission, alignment orders, letters from the town hall. In the event of a dispute, these documents are crucial to prove that the transfer was not planned.

Further Reading: Related Case Law and Developments

This 1986 decision has been confirmed subsequently. In particular, the Court of Cassation ruled in a judgment of 13 December 1994 (No. 93-70.062) that the free transfer can only be imposed if it is 'the condition of a planning permission'. It also specified that if the permission is annulled, the transfer becomes void.

However, a recent development deserves attention: since the ALUR law of 2014, Article R.332-15 has been repealed and replaced by Article L.332-6-1 of the Town Planning Code, which maintains the principle of free transfer within the framework of planning permission. The 1986 case law therefore remains relevant.

Courts are increasingly strict: they require that the transfer be 'necessary' for the building operation and proportionate. A town hall that requests an excessive transfer (for example, 50% of the land) risks having its request rejected.

What You Absolutely Must Remember

• The free transfer is only legal if it appears in your planning permission. No permission = no obligation.
• If the town hall asks you for a transfer without permission, you are entitled to compensation. This corresponds to the value of the land, fixed by the expropriation judge.
• Do not sign anything without consulting a lawyer. A verbal agreement or a letter of acceptance can bind you.
• In the event of a dispute, take the matter to the administrative court. The deadline for appeal is two months from the town hall's decision.
• The 1986 decision is still applicable. It has been confirmed by subsequent judgments.

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 →