Development: when is a preliminary contract valid without planning permission?

Imagine: you own a plot of land in Saint-Florent, Haute-Corse. You decide to divide it into three plots to sell separately. A buyer comes forward, you sign a preliminary contract. But you have not yet obtained the planning permission for the development. Is the preliminary contract valid? Can it be annulled?

This is exactly the question the Court of Cassation decided in 1965, in a judgment that still carries authority today. The answer is clear: without prior permission, any promise to sell plots is void. A lesson that applies to all owners, particularly in Corsica where building land is highly sought after.

This judgment, although nearly sixty years old, remains a reference for property professionals and individuals alike. It reminds us that planning law does not take formalities lightly. So, what are the risks if you sign a preliminary contract without permission? And how can you protect yourself? Follow the guide.

The facts: a story that happens every day

Mr X, owner in Saint-Florent, decides in 1958 to develop his land. He divides it into several plots and signs preliminary contracts with several buyers. The problem? He has not yet obtained the planning permission required by the Town Planning and Housing Code (article 107). At the time, a decree of 31 December 1958 provided for transitional provisions, but a new decree of 28 July 1959 was to come into force. In the meantime, the old rules applied.

Mr X is prosecuted criminally for selling plots without permission. Before the judges, he argues that the preliminary contracts were not final sales, but mere promises. He also invokes the transitional period, claiming that the new rules were not yet applicable. But the Court of Appeal convicts him. He appeals to the Court of Cassation.

The Court of Cassation dismisses his appeal. It considers that the lower courts correctly applied article 15 of the decree of 31 December 1958: the formalities of the former article 107 remained in force until the decree of 28 July 1959 came into force. It does not matter that Mr X signed preliminary contracts rather than final deeds: the mere fact of promising to sell a plot without permission constitutes an offence.

The reasoning of the court — analysed

The Court of Cassation relies on article 15 of Decree No. 58-1466 of 31 December 1958. In plain language, this text says: 'During the transitional period, the old rules on the composition of the application file for planning permission (article 107 of the Town Planning and Housing Code) and on the processing times (article 108 of the regulation of 12 June 1944) remain applicable until the new decree provided for by article 3 comes into force.'

In other words, as long as the decree of 28 July 1959 was not in force, the old formalities applied. However, Mr X had signed his preliminary contracts before that date. He could not therefore rely on any exemption.

Next, the Court examines the legal nature of the preliminary contracts. Mr X argued that they were only unilateral promises, not sales. But the Court responds that the mere fact of promising to sell a plot without permission is prohibited, whether the promise is followed by a final sale or not. The offence is constituted from the promise. This is an essential point: even a pre-contract can be penalised.

Finally, the Court rejects Mr X's argument that the lower courts had not sufficiently reasoned their decision. It considers that the five sales found suffice to justify the conviction, without needing to discuss the legal effects of each preliminary contract. In short, the Court confirms the conviction, thereby reinforcing the strictness of planning rules.

What this means for you — practically

If you own land to develop, this decision directly concerns you. You cannot sign a preliminary contract until you have obtained planning permission (or, depending on the case, a 'permis d'aménager'). In Calvi, for example, a 500 m² building plot can be negotiated at around €150,000. If you sign a preliminary contract before permission, the buyer can request the annulment of the contract and, in addition, you risk criminal prosecution (a fine of up to €15,000, or even more).

If you are a buyer, this judgment protects you. You can require the seller to provide proof of permission before signing anything. If the seller has already signed a preliminary contract without permission, you can withdraw without penalty, or even claim damages if you have suffered a loss (e.g., soil survey costs or notary fees).

For property professionals, the judgment reminds that checking planning permissions is a prior obligation. An estate agent who drafts a preliminary contract without ensuring permission is obtained may incur civil and disciplinary liability. Notaries are also on the front line: they must refuse to draft a deed if permission is lacking.

Four tips to avoid this type of dispute

• Check permission before any promise: Before signing a preliminary contract or a unilateral promise to sell, require the seller to provide a copy of the planning permission (or 'permis d'aménager'). If it has not yet been obtained, do not sign anything.
• Include a suspensive condition: In any pre-contract, provide a clause that makes the sale conditional on obtaining permission. Thus, if permission is not granted within a given period, the contract is void and the buyer gets back their deposit.
• Use a specialist lawyer: In Saint-Florent as elsewhere, a property lawyer can review your preliminary contract and ensure its compliance. The cost is modest compared to the risks.
• Do not rely on verbal promises: A seller may tell you 'permission is in progress', but without written proof, you are vulnerable. Require an official document (e.g., receipt of the application).

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Further reading: related case law and developments

This 1965 decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 14 March 1962 (No. 60-10.123), the Court had already held that a promise to sell a plot without permission was void. More recently, in 2018, the Court clarified that the lack of permission can be invoked by the buyer even after the final sale, to seek annulment (Cass. 3e civ., 21 June 2018, No. 17-20.714).

The trend is therefore towards strengthening buyer protection. Courts do not hesitate to annul entire sales if permission is lacking. For sellers, the message is clear: it is better to wait for permission before promising. For professionals, vigilance is required: a simple preliminary contract can prove costly.

Frequently asked questions

Can I sign a preliminary contract if planning permission has been applied for but not yet obtained? No, it is risky. Even if the application is in progress, the preliminary contract is unlawful. It is better to wait for permission.

What should I do if I have already signed a preliminary contract without permission? If you are a buyer, you can withdraw without cost. If you are a seller, consult a lawyer to regularise the situation (obtain permission as soon as possible).

What are the timeframes for obtaining planning permission? Generally, 2 to 4 months for a 'déclaration préalable', 6 to 12 months for a 'permis d'aménager'. In Calvi, timeframes may be longer in sensitive areas (coastal, mountain).

Are there any exceptions? Yes, for developments of fewer than 2 plots without shared roads, a simple 'déclaration préalable' suffices. But permission is still required before any promise.

What is the criminal risk for the seller? A fine of €1,200 to €15,000, or even more in case of repeat offence (article L. 480-4 of the Town Planning Code). And if the preliminary contract is annulled, the seller may be ordered to pay damages.

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