Illegal construction: the Court of Appeal may order demolition without waiting for the administrative court

Imagine: you are the owner of a house in Le Mans, in the Sablons district. You have carried out extension works without planning permission. The town hall puts you on notice to demolish, you refuse, and you are criminally sentenced to a fine and demolition. But you believe that the town hall's order is illegal. How far can you challenge this illegality before the criminal court? And above all, must the criminal court wait for the administrative court to rule? This decision of the Court of Cassation of 21 November 2017 answers this crucial question for any owner confronted with a planning procedure.

In clear terms, the High Court has ruled: the criminal court, when seized of a contentious incident relating to the execution of a sentence (Article 710 of the Code of Criminal Procedure), may assess the legality of an administrative act (such as a demolition order) without having to stay proceedings, even if that act has not been challenged before the administrative court. In other words, no need to wait years for the administrative court to rule: the criminal court can immediately decide on the validity of the order and, if necessary, order the demolition.

What few people know is that this decision is part of a logic of judicial efficiency: avoiding procedural delays that paralyse the execution of sentences. But beware, this jurisdiction is not without limits. Let's dive into the details.

The facts: a story that happens every day

Mr A..., owner in Le Mans, carried out construction works without complying with the planning permission that had been granted to him. The town hall issued an order ordering the demolition of the works, on the basis of Article L. 480-7 of the Planning Code (which allows the administrative authority to require the demolition of illegal constructions). Mr A... did not challenge this order before the administrative court within the two-month period. Result: the order became final.

At the same time, the Criminal Court of Le Mans sentenced Mr A... to a fine of €5,000 for a planning offence, and ordered the demolition of the works. Mr A... appealed. Before the Court of Appeal, he raised a contentious incident relating to the execution of the sentence: he contested the legality of the demolition order, arguing that it was illegal. The Court of Appeal rejected his argument, considering that it could assess the legality of the order without waiting for the opinion of the administrative court, and that the fact that the order had not been challenged before the administrative court was irrelevant.

Mr A... appealed to the Court of Cassation. He argued that the Court of Appeal should have stayed proceedings and referred the matter to the administrative court to assess the legality of the order, in accordance with the principle of separation of powers. The Court of Cassation dismissed his appeal, confirming the decision of the Court of Appeal.

The reasoning of the court — dissected

The Court of Cassation relied on two key texts. First, Article 710 of the Code of Criminal Procedure (which allows the court to examine contentious incidents relating to the execution of a sentence). Second, Article 111-5 of the Criminal Code (which authorises the criminal court to assess, by way of exception, the legality of an administrative act when it is seized of an offence).

The reasoning is as follows: when the Court of Appeal is seized of an enforcement incident under Article 710, it exercises a criminal jurisdiction. However, Article 111-5 of the Criminal Code allows the criminal court, in the context of criminal proceedings, to assess the legality of an administrative act (such as a demolition order) incidentally, i.e. only for the purposes of the case, without having an erga omnes effect. It can therefore decide whether the order is legal or not, and draw the consequences on the sentence (for example, confirm or cancel the demolition order).

The Court specifies that this assessment may take place even if the administrative act has not been challenged before the administrative court. In other words, the owner cannot argue before the criminal court that the order is illegal without having challenged it in time before the administrative court. The criminal court can go ahead and check the legality of the act itself. This avoids dilatory strategies consisting of challenging the administrative order years later, to paralyse the criminal proceedings.

However, note: this jurisdiction is not absolute. The criminal court can only assess the legality of an administrative act if it is necessary for the resolution of the criminal dispute. Moreover, it cannot annul the act (only the administrative court can do that), but simply declare it inapplicable in the specific case.

undefined, I have encountered cases where owners tried to drag things out by referring the matter to the administrative court after their criminal conviction, hoping that the criminal court would suspend the demolition. This decision closes that door: the criminal court can decide immediately.

What this changes for you — concretely

For landlord owners in Mamers: if you have carried out works without a permit, and the town hall issues a demolition order, do not count on a late challenge before the administrative court to have the demolition annulled during your criminal trial. The criminal court can order the demolition without waiting, even if you have not challenged the order. Concrete example: demolition of a 20 m² extension can cost between €5,000 and €15,000. In addition, you risk a fine of up to €120,000 (Article L. 480-4 of the Planning Code).

For tenants: you are rarely directly concerned, but if your landlord is ordered to demolish part of the dwelling, you may have to leave the premises. Better check before signing a lease that the dwelling complies with planning rules.

For buyers: before buying a property in Le Mans, check that there is no unexecuted demolition order. Sale deeds often mention planning easements, but not always ongoing criminal proceedings. A simple call to the town hall can save you years of proceedings.

For co-owners: if a co-owner carries out illegal works in the common parts (for example, a veranda on a terrace), the syndic may bring an action for demolition. This decision confirms that the criminal court can order demolition quickly, without waiting for the co-owner to exhaust all administrative remedies.

If you are in this situation, you must act quickly: as soon as you receive a demolition order, challenge it before the administrative court within two months. Otherwise, the criminal court may apply it without restraint.

Four tips to avoid this type of dispute

• Before any works, consult your town hall's planning department. In Le Mans, the department is located at place Saint-Pierre. A simple appointment can save you a fine and demolition. Check whether your project requires planning permission or a prior declaration.
• If you receive a demolition order, challenge it immediately before the administrative court. The deadline is two months from notification. After this deadline, the order becomes final and the criminal court can apply it without being able to discuss its legality.
• Do not try to drag out the criminal proceedings hoping for a stay of proceedings. As this decision shows, the criminal court can itself assess the legality of the order and order immediate demolition. You risk additional costs (lawyer's fees, expert fees).
• If you are a buyer, have a planning diagnostic carried out before the sale. This document, produced by a notary or a lawyer, lists the planning rules applicable to the property. It may reveal the existence of a demolition order or ongoing proceedings.

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

Further reading: related case law and developments

This decision is part of a consistent line of case law from the Court of Cassation. Already, in a judgment of 8 February 2012 (No. 11-85.407), the Court had ruled that the criminal court could assess the legality of a planning permission by way of exception, even if it had not been challenged. The 2017 decision extends this principle to enforcement incidents.

In contrast, the Nantes Administrative Court of Appeal, in a judgment of 15 March 2016, had adopted a more restrictive position, considering that the criminal court could not rule on the legality of an administrative act without referring the matter to the administrative court. But the Court of Cassation has ruled in favour of a broader reading of Article 111-5 of the Criminal Code.

This trend is clear: the legislator and the judges wish to accelerate the execution of sentences in planning matters, to combat illegal constructions that disfigure landscapes and create inequalities between owners. In the future, we can expect the criminal court to use this jurisdiction even more frequently, particularly for environmental offences.

In practice: what to do

FAQ:

1. Can I challenge a demolition order after my criminal conviction? Yes, but the criminal court can assess it itself without waiting for the administrative court. Better to challenge the order within two months of its notification.
2. What if I am ordered to demolish? You must execute the decision under penalty of a daily fine (often €50 to €200 per day). If you believe the order is illegal, urgently refer the matter to the administrative court (interim suspension) and ask the Court of Appeal to stay execution.
3. What is the cost of proceedings? A consultation with a lawyer specialising in planning law costs between €150 and €300. Full proceedings (appeal, appeal to the Court of Cassation) can cost several thousand euros. Compare with the cost of demolition: €5,000 to €15,000 on average.
4. Can I sell a property subject to a demolition order? Yes, but you must inform the buyer (duty of good faith). The buyer may ask for a price reduction or renounce the sale. In practice, notaries advise against this type of transaction.

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 →