Reference decision: cc • No. 73-90.569 • 1974-05-16 • View the decision →
Imagine: you have just acquired a commercial premises in Parentis-en-Born, intending to use it for storage of furniture and household appliances. You obtain planning permission for some interior alterations, specifying the use clearly. A year later, you lease the premises to a trader. But instead of storage, he sets up a retail business, or worse, a dwelling. What happens? You could be prosecuted criminally for breach of planning permission, even though you are not the one who made the change. This is exactly what the Court of Cassation ruled in a decision of 16 May 1974, still applicable today.
This decision concerns an owner who obtained permission for premises intended for storage of furniture and household appliances. The tenant transformed the premises into a retail shop. The owner was convicted for breach of planning legislation, on the ground that he had not ensured compliance with the undertakings given when the permission was granted. In short, planning permission is not just a piece of paper: it creates obligations that bind the owner, even when the property is leased.
But what does this mean for you, as owner, tenant or property professional? This decision illustrates a fundamental principle of planning law: the use of a building, as defined in the planning permission, must be respected throughout the life of the building, subject to criminal penalties (fine, reinstatement) and civil penalties (damages). And you, as owner, are primarily responsible. So, how should you react?
The facts: a story that happens every day
Mr X, owner of a commercial premises in Parentis-en-Born, applies for planning permission to fit out a premises intended for storage of furniture and household appliances. Permission is granted, with precise conditions as to use. Mr X carries out the works in accordance with the permission, then leases the premises to a trader. The tenant, without informing the owner, alters the interior layout and converts the premises into a retail shop. A planning inspection takes place, and the breach is noted: the actual use of the premises does not correspond to that stated in the planning permission.
The owner is prosecuted criminally. He defends himself by arguing that it was the tenant who changed the use, and that he himself merely carried out the permission. The Court of Appeal convicts him for breach of planning legislation. Mr X appeals to the Court of Cassation. He argues that the permission imposed nothing as to interior layout, and that the changes made by the tenant cannot be attributed to him.
The Court of Cassation dismisses his appeal. It holds that the planning permission had been granted in consideration of the undertakings given by the owner as to the intended use of the proposed buildings. By failing to ensure compliance with those undertakings, the owner committed an offence, even if the tenant was the physical author of the change. In other words, the owner remains the guarantor of compliance with the planning permission, vis-à-vis the authorities, throughout the term of the lease.
The reasoning of the court — dissected
The reasoning of the Court of Cassation is based on Article L. 480-4 of the Planning Code (in its wording then applicable), which penalises carrying out works not in conformity with a planning permission. But the question was who is liable when the owner is not the author of the works. The Court answers: the person who obtained the permission (the owner) is responsible for its proper execution, even if he did not personally carry out the works.
Why such strictness? Because planning permission is an individual administrative act authorising specific works, based on a declared use. If the use changes, the authorities must be able to check whether the new planning rules (parking, safety, etc.) are complied with. The owner, as the project manager, is the sole point of contact for the authorities. He cannot hide behind his tenant.
Note, however: this decision did not create absolute liability. The owner may be exonerated if he proves that he took all necessary precautions to ensure the tenant respected the use (for example, by inserting a clause in the lease prohibiting any change of use, and by carrying out regular checks). But in this case, the owner had made no provision.
What few people know is that this case law is still relevant today. undefined, I have come across cases where owners, particularly in Dax, have been convicted for changes of use made by their tenants, even though the lease contained a clause requiring compliance with the use. But the clause is not enough: you must also demonstrate that you actively ensured its compliance. In short, planning law is stricter than civil law: the tenant's fault is presumed attributable to the owner.
What this means for you — practically
For landlord owners: you must include in your lease a clear clause prohibiting any change of use without your prior written consent. But above all, you must carry out periodic inspections to check that the tenant complies with this clause. If you discover a change, you must act quickly: formal notice, then action for lease termination for breach of use. Example: premises let in Dax for "storage" use converted into a "gym": you risk a fine of up to €300,000 and an obligation to reinstate the premises at your own cost.
For tenants: you must be aware that any change of use, even minor (e.g., from "storage" to "retail"), may be considered an offence. Before altering the premises, check your lease and the owner's planning permission. If necessary, request written authorisation. Otherwise, you risk lease termination and damages.
For purchasers: before buying premises, check that the use stated in the planning permission corresponds to the actual use. If the use has been changed without authorisation, you could inherit the criminal proceedings. Example: a premises in Parentis-en-Born bought for €150,000, but the seller had converted a warehouse into a dwelling without permission. The purchaser had to pay €20,000 for reinstatement.
For property professionals: when drafting a lease, include a precise use clause, and advise your owner client to carry out an annual inspection with photos. If in doubt, a planning diagnostic can be carried out by a chartered surveyor.
Four tips to avoid this type of dispute
- Tip 1: Draft a precise lease. State the exact use of the premises, using the terms of the planning permission. Formally prohibit any change without written consent. Add a deterrent penalty clause.
- Tip 2: Inspect regularly. Schedule a visit every 6 months. Take photos. If you live far away (e.g., from Mont-de-Marsan), appoint a trusted third party.
- Tip 3: Monitor the tenant's works. Any interior alterations must be subject to your approval. Require a description of the works and, if necessary, a prior declaration to the town hall.
- Tip 4: Anticipate changes. If your tenant wishes to change activity, assist them in applying for a modified planning permission. This secures everyone.
Further reading: related case law and developments
This 1974 decision is in line with a consistent line of the Court of Cassation. A judgment of 13 July 1961 (Civ. 3e) had already held that the owner is liable for offences committed by his tenant. More recently, a judgment of 5 July 2018 (no. 17-84.176) reminded that failure to comply with the use stated in a planning permission constitutes a continuing offence, prescribed only 6 years after the cessation of the non-compliant works.
The trend is towards strengthening the owner's liability. Since the ALUR law of 2014, criminal penalties for breach of planning permission have been increased (fine up to €300,000, obligation to reinstate under penalty). Courts do not hesitate to convict owners even in the absence of personal fault.
For the future, case law may evolve towards shared liability between owner and tenant, but for now, the owner pays. It is therefore essential to protect yourself contractually.
What you absolutely must remember
FAQ:
- Can I be prosecuted if my tenant changes the use without my consent? Yes, you are presumed liable. However, you can then claim against the tenant after compensating the authorities.
- What is the time limit for action? The authorities can note the offence for 6 years from the end of the non-compliant works. For you, as owner, act as soon as you discover it.
- What is the cost of compliance? Between €5,000 and €50,000 depending on the extent of works. In Dax, a recent case cost an owner €15,000.
- What if the tenant refuses to leave? Initiate lease termination proceedings for breach of use. You can also apply to the urgent applications judge to stop the disturbance.
- Does a clause in the lease protect me? Not entirely. It allows you to claim against the tenant, but you remain liable vis-à-vis the authorities.
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