Illegal Construction: The Purchaser Cannot Escape Eviction (Cass. crim., 29 Feb. 2012)

Imagine: you buy a pretty house with a swimming pool in Bandol, right on the water. A few months later, the mayor tells you that the seller built without a permit and was ordered to demolish everything. You have to leave, without compensation. Unfair? Yet this is what the Court of Cassation confirmed on 29 February 2012 (no. 10-27.889).

The question every purchaser asks: "Am I protected if I buy an irregular property in good faith?" The answer is no, when the irregularity has already been established by a criminal judge. The decision we are going to analyse concerns an owner in Saint-Saturnin-de-Lucian (Hérault), but its lessons apply to the entire Var coast, from La Seyne-sur-Mer to Toulon.

In short, planning law prevails over property law when a construction is illegal. And the purchaser, even if innocent, inherits the obligations of reinstatement. Explanations.

The facts: a story like many that happen every day

Mr X, owner of agricultural land in Saint-Saturnin-de-Lucian, decides to build a dwelling house without a planning permit. The municipality prosecutes him criminally. In 2007, the criminal court fines him and orders, on the basis of Article L. 480-9 of the French Planning Code, the reinstatement of the premises to agricultural use, under a penalty payment. Mr X then sells the property to a couple, Mr and Mrs Y, purchasers in good faith.

The municipality, noting that the premises have not been restored, requests the eviction of the occupants in order to carry out the works. The purchasers resist: they have not been convicted, they are third parties, and Article L. 480-9 would require that works be provided at their expense.

The Montpellier Court of Appeal rules in their favour: it refuses eviction on the ground that the criminal judgment does not impose works on the purchasers and that Article L. 480-9 makes eviction conditional on the carrying out of necessary works. But the municipality appeals to the Court of Cassation.

The reasoning of the court — analysed

The Court of Cassation quashes the appeal judgment. Its reasoning consists of two points.

Firstly, the successor in title by particular title of the beneficiary of the works (i.e. the purchaser) is not a "third party" within the meaning of Article L. 480-9 of the French Planning Code. This article allows the criminal judge to order the reinstatement of the premises and, if necessary, the eviction of any person occupying the property. However, the notion of "third party" refers to occupants with no connection to the convicted person (tenant, squatter), not those who acquired the property after the conviction. By purchasing, Mr and Mrs Y succeeded to the seller's rights, including his obligations to execute the court decision. In other words, they became the debtors of the reinstatement obligation.

Secondly, the supplementary penalties provided for by Article L. 480-9 are measures of a real nature: they attach to the property itself, regardless of the person occupying it. As the Court states: "the supplementary penalties are measures of a real nature intended to bring an unlawful situation to an end." Thus, eviction can be ordered even without works being charged to the occupant, because it aims to allow the municipality to carry out the reinstatement works itself.

What few people know is that this judgment confirms a consistent line of authority since the 1990s: the purchaser cannot hide behind his good faith to escape demolition. The Court of Cassation has already held that "the good faith of the purchaser does not prevent the execution of the reinstatement decision" (Crim., 14 Nov. 2001, no. 00-86.450).

What this changes for you — concretely

For owners wishing to sell an irregular property: know that the criminal conviction follows you, but above all it follows the property. If you sell before the works are executed, the purchaser will have to carry them out or suffer eviction. In practice, this makes the property unsaleable unless you demolish beforehand.

For purchasers: before buying, always check the conformity of the planning permit. Ask the seller for a certificate of non-prosecution or consult the planning register. If the property has been the subject of a conviction, you may have to demolish everything at your own expense, without recourse against the seller if he is insolvent. Example in La Seyne-sur-Mer: a purchaser bought a villa with a sea view, but the permit did not match. The seller had been convicted 3 years earlier. The purchaser had to pay €80,000 for demolition and lost his house.

For municipalities: this judgment gives you a powerful tool. You can request the eviction of occupants without having to demonstrate that works are at their expense. It is sufficient that the criminal judgment ordered reinstatement and that it has not been executed. The eviction request must be brought before the tribunal de grande instance (now tribunal judiciaire) as provided for by Article L. 480-9.

For tenants: you are considered "third parties" and can only be evicted if works require the premises to be vacated. But be careful, if the lease was concluded after the conviction, your situation is more precarious.

Four tips to avoid this type of dispute

• Systematically check the planning permit before buying. Consult the town planning department of the town hall to obtain a copy of the permit and verify its conformity with the works carried out. If in doubt, call in a surveyor or architect.
• Demand guarantees from the seller: a warranty against eviction clause in the deed of sale, a sworn statement of the absence of proceedings, or a decennial liability insurance. If the seller has been convicted, ask for a price reduction corresponding to the cost of the compliance works.
• Before signing a preliminary contract, ask the neighbours: illegal constructions are often known locally. A phone call to the town hall can reveal ongoing litigation.
• If you are the owner of an irregular property, do not sell without having executed the court decision. You will incur liability for yourself and the purchaser. Better to regularise or demolish before selling.

Further analysis: related case law and developments

This judgment is part of a strict line of authority for purchasers. Already in 2001 (Crim., 14 Nov. 2001, no. 00-86.450), the Court of Cassation held that the good faith of the purchaser did not prevent demolition. In 2015 (Crim., 10 June 2015, no. 14-80.124), it specified that eviction could be ordered even if the convicted person is no longer the owner.

The trend is therefore towards the protection of the general planning interest, to the detriment of the legal security of purchasers. The courts consider that the purchaser has the means to inform himself and must bear the consequences of his lack of vigilance.

For the future, the ALUR law of 2014 strengthened sanctions in planning matters, notably by increasing fines and facilitating demolition. It is likely that the case law will remain constant.

Checklist before acting

If you are a purchaser of a suspect property:

• Consult the planning permit register at the town hall.
• Ask the seller for a certificate of non-conviction.
• Check the absence of litigation by inquiring at the tribunal judiciaire.
• Have a planning diagnosis carried out by a professional.
• If in doubt, renounce the purchase or negotiate a guarantee.

If you are the owner of an irregular property:

• Regularise the permit if possible (amending permit).
• Otherwise, demolish or bring into conformity before selling.
• Do not sell without informing the purchaser, on pain of damages.

If you are a municipality:

• After a criminal conviction, apply to the tribunal judiciaire to obtain the eviction of the occupants.
• Eviction can be requested even if no works are charged to the occupant.

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