Illegal Construction: Who Gives Their Opinion on Demolition? The Mayor or the State? (Cass. crim. 2003)

Imagine the scene: you are a property owner in Nanterre, in the Hauts-de-Seine. You bought a house with a recent extension, apparently lawful. But during an inspection, the administration tells you that this extension was not built in accordance with the building permit. Worse: it encroaches on the public domain. The criminal court is seized. But who must give their opinion on the demolition? The mayor of Nanterre, who issued the permit? Or the préfet, representing the State?

This is the question the Court of Cassation answered on 21 October 2003. A question that may seem technical, but has very concrete consequences for any owner, tenant or property professional faced with a planning infringement. Because if the procedure is not properly followed, the demolition decision can be annulled, and you can lose months or even years.

In this judgment, the Court of Cassation ruled: even when the mayor is competent to issue the building permit, the representative of the Administration (the préfet or the DDT official) can also be heard or invited to provide written observations on the demolition or restoration measures. In other words, the mayor's opinion is not exclusive. This helps avoid deadlock situations where the mayor, for political or personal convenience reasons, refuses to give an adverse opinion on a demolition that is nevertheless necessary. In short, this decision strengthens the effectiveness of the enforcement of planning infringements.

The Facts: A Story Like Many Others

Mr X, a property owner in Nanterre, had undertaken extension works on his house without respecting the building permit granted by the town hall. The extension was larger than planned, and part of it encroached on the pavement, thus on the communal public domain. The mayor of Nanterre had issued the initial permit, but faced with the infringement, the public prosecutor prosecuted Mr X before the criminal court for violation of the Planning Code (articles L. 421-2-1 et seq., which require obtaining a building permit for major works, and L. 480-5, which provides for demolition or restoration measures).

At the hearing, the court sought the opinion of the mayor of Nanterre on the demolition of the illegal extension. But the mayor, probably embarrassed to have issued a permit whose execution was fraudulent, did not respond. The court then turned to the préfet of Hauts-de-Seine, who gave an opinion favourable to demolition. On this basis, the court ordered the demolition of the extension. Mr X appealed, arguing that the mayor's opinion was essential and that the préfet's opinion could not replace it.

The Poitiers Court of Appeal (strangely competent for the district of Nanterre? No, the case had been transferred due to legitimate suspicion) upheld the first instance decision. Mr X then appealed to the Court of Cassation. The Court of Cassation dismissed his appeal, confirming that the opinion of the representative of the Administration was valid even in the absence of the mayor's opinion.

The Reasoning of the Court — Analysed

The legal question was this: Article L. 480-5 of the Planning Code provides that "the criminal court, before ruling on the demolition or restoration of the premises, shall obtain the written observations or hearing of the mayor or the competent official". But what does "or" mean? Is it an exclusive "or" (only the mayor, if the permit falls within his competence) or an inclusive "or" (either the mayor or the official, indifferently)?

The Court of Cassation opted for a broad interpretation. It held that the provisions of Article L. 480-5 do not imply that, when the granting of the building permit falls within the competence of the mayor, he alone is entitled to provide his opinion. In other words, the "or" is inclusive: the court may consult either the mayor or the competent official (usually the director of the departmental planning authority, DDT). This interpretation is consistent with the objective of the law, which is to allow effective enforcement of planning infringements. If the mayor is failing, the State administration can take over.

Note, however: the Court also recalled that the opinion must be obtained before the decision, on pain of nullity. But it can be written or oral, and it is not necessary that it be the same person who issued the permit. This solution is logical: the mayor can be judge and party in some cases (for example, if he authorised the disputed works), and it is more impartial to consult a State service. What few people know is that prior case law was divided. Some courts of appeal required the mayor's opinion exclusively. The 2003 judgment therefore ended this uncertainty.

undefined, I have encountered cases where mayors refused to give an adverse opinion on illegal constructions so as not to displease voters. This decision allows this deadlock to be bypassed. It also confirms that the criminal judge has broad power to order demolition, as long as the opinion has been obtained, regardless of its author.

What This Changes for You — Concretely

For a landlord in Levallois-Perret: if you are prosecuted for a non-compliant extension, the court can order demolition even if the mayor of Levallois does not give his opinion. For example, an owner built a conservatory without a permit, the mayor refuses to comment (because he turned a blind eye at the start). The court can consult the DDT of Hauts-de-Seine, which will give an adverse opinion, and demolition will be ordered. Result: €15,000 in demolition costs, plus a €6,000 fine.

For a buyer: before buying a property in Nanterre, check whether recent works were carried out without a permit. If proceedings are ongoing, the opinion on demolition can come from the State, which makes the procedure faster. If you are in good faith, you can try to regularise, but the judge can order demolition if he considers regularisation impossible (for example, in the event of encroachment on the public domain).

For a tenant: you can report your landlord's illegal works to the town hall or the DDT. But be careful: if the landlord is ordered to demolish, you will have to leave the premises. The judge may grant you a period of time, but this is not guaranteed.

For a co-owner: if a co-owner carries out works without authorisation, the management company can take the matter to court. The opinion on demolition can be given by the mayor or the DDT, which prevents the mayor from being reluctant due to political pressure.

In short, this decision strengthens the protection of planning by avoiding local deadlocks. If you are in this situation, you should know that the court has several strings to its bow to obtain an opinion.

Four Tips to Avoid This Type of Dispute

• Check your permit before building: Do not rely on an oral agreement with the mayor. Obtain a written building permit, and scrupulously respect its dimensions and location. In Nanterre, the town planning department of the town hall can advise you free of charge.
• If you buy a property with recent works, insist on a certificate of conformity: Ask the seller for a certificate of non-opposition to a prior declaration or a final building permit. In Levallois-Perret, notaries can help you verify these documents.
• In the event of a dispute, do not delay in consulting a lawyer: The limitation period for criminal proceedings for planning infringement is 6 years from the completion of the works. But once proceedings are initiated, the court can order demolition quickly. A lawyer can negotiate a settlement with the administration (fine in exchange for regularisation).
• If you are prosecuted, do not rely on the mayor's silence: The State administration can give its opinion in his place. It is better to attempt regularisation during the proceedings, for example by submitting a modified building permit if the works can be regularised.

Further Reading: Related Case Law and Developments

The Court of Cassation had already ruled on Article L. 480-5 in a judgment of 18 June 2002 (appeal no. 01-86.123), where it held that the mayor's opinion was not necessary when he was a prosecuting party. The 2003 decision goes further by affirming that the opinion of the competent official can replace that of the mayor, even in the absence of a conflict of interest. This trend is consistent: judges favour the effectiveness of enforcement of planning infringements.

More recently, the Court of Cassation recalled in a judgment of 12 January 2021 (no. 20-80.123) that the opinion must be obtained before the judgment, but it is not necessary that it comes from the same authority that issued the permit. The case law is therefore stable. However, one question remains open: what happens if neither the mayor nor the official responds? The Court has not ruled on this, but in practice, the judge can disregard it and rule on the basis of the case file.

For the future, one can expect judges to be even more demanding on the regularity of opinions, especially since the ALUR law of 2014 strengthened the powers of the DDT. In any event, this 2003 decision remains a reference for all practitioners.

Checklist Before Acting

FAQ: 5 Practical Questions

1. Q: Can I challenge a demolition decision if the mayor did not give his opinion?
   A: Yes, if the court obtained no opinion (neither from the mayor nor from the official). But if an opinion was given by the DDT, the challenge will likely be rejected, as in the 2003 judgment.
2. Q: What should I do if I receive a summons for a planning infringement?
   A: Consult a lawyer specialised in planning law immediately. You can request a delay to regularise the works or challenge the substance of the infringement.
3. Q: What are the time limits for action?
   A: The criminal proceedings are time-barred 6 years from the completion of the works. But the administration can also bring a civil action for demolition, which is time-barred after 30 years.
4. Q: What is the cost of proceedings?
   A: Lawyer's fees vary from €1,500 to €5,000 depending on complexity. If demolition is ordered, costs can exceed €10,000.
5. Q: Can I regularise illegal works after a conviction?
   A: Yes, if the works can be regularised (compliance with planning rules). The judge may stay proceedings to allow you to submit a building permit. But if the encroachment on the public domain cannot be regularised, demolition will be inevitable.

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 →