Illegal Construction: When the Town Hall Can Demand Demolition Without a Trial

Imagine: you have just bought a small house in Bruz, with a nice shed at the bottom of the garden. The previous owner assures you everything is in order. Except the town hall sends you a letter: “This shed was built without a building permit. You must demolish it.” Panic sets in. Can you really be forced to raze a building you did not construct yourself? This is precisely the question the Court of Cassation decided in 1977. A decision which, nearly fifty years later, remains an absolute reference for all owners, buyers and property professionals.

But what exactly does it change? This decision, handed down by the Criminal Chamber of the Court of Cassation on 22 November 1977 (No. 76-91.573), established a simple but formidable principle: the criminal court may, in the context of criminal proceedings for a breach of the Town Planning Code, order the demolition of the illegal structure without waiting for civil proceedings. In other words, the town hall does not need to bring a claim for damages: it can directly ask the criminal court to stop the breach.

In this article, we will dissect this landmark case, understand the judges’ reasoning, and above all give you the keys to avoid finding yourself in such a situation. Whether you are an owner in Fougères, a buyer in Rennes or a developer anywhere in France, this decision concerns you.

The Facts: A Story Like Those That Happen Every Day

We are in Paris, but the story could have taken place in Bruz or Fougères. Mrs Rolande, owner of a plot of land, had a building constructed without first obtaining the required building permit. The Town Planning Code, in its Article L.480-4 (now codified in Articles L.480-4 et seq.), punishes the construction of a building without a permit by a fine and/or imprisonment. But that is not all: the same article allows the court to order the demolition of the structure and the restoration of the site.

The Paris town hall therefore prosecuted Mrs Rolande before the criminal court. At first instance, the court fined her and ordered the demolition of the building. Mrs Rolande appealed. The Paris Court of Appeal, in a judgment of 29 April 1976, confirmed her guilt but refused to order demolition, considering that this measure was not necessary. The town hall then appealed to the Court of Cassation.

The appeal raised a crucial question: can the criminal court order the demolition of an illegal structure, even if the owner in good faith is not the person who committed the breach? In this case, Mrs Rolande was not the one who built without a permit: she had acquired the land after the construction, but she had become its owner. The Court of Appeal had held that, given her good faith, there was no need to demolish.

The Court of Cassation did not follow this reasoning. In a very short judgment, it quashed the appeal judgment, stating that “the demolition of a structure built without a building permit constitutes a breach punishable by criminal penalties under Article L.480-4 of the Town Planning Code” and that “the appeal must be allowed.” In short, the owner’s good faith does not prevent the judge from ordering demolition.

What few people know is that this decision was given under a previous law (Law of 16 July 1974), but the principle has remained unchanged since. undefined, I have encountered cases where buyers, thinking they had made a good deal, ended up with a demolition order. It is a very real risk.

The Reasoning of the Court — Analysed

To understand the decision, we must go back to the applicable text. Article L.480-4 of the Town Planning Code (in its version at the time, but the principle is the same today) provides that “the court may order the demolition of a structure built without a building permit.” It is not an obligation, but a power left to the judge’s discretion. However, the Court of Cassation specifies that this power may be exercised even if the current owner is not the person who committed the breach.

The High Court relies on the concept of a continuing breach: a building without a permit constitutes a breach that continues as long as the building exists. Every day, the owner (even in good faith) commits a breach by leaving the structure in place. Consequently, the criminal court may order demolition to stop this breach.

The appeal judges had considered that Mrs Rolande’s good faith was a mitigating circumstance justifying not ordering demolition. But the Court of Cassation considers that good faith is not a defence: it may affect the penalty (fine, imprisonment), but not the measure of restoration. In other words, you may be in good faith and still have to demolish.

This reasoning has since been confirmed on numerous occasions. For example, in a judgment of 15 February 1984, the Court of Cassation held that “demolition may be ordered even if the defendant is in good faith and did not personally commit the breach.” It has become settled case law.

However, note that the judge retains a discretion. He may refuse to order demolition if he considers the measure disproportionate (for example, if the structure is very old and the town hall has allowed it). But in practice, the courts are often severe, especially for recent structures.

What This Means for You — Practically

For a landlord: if you let a property that includes an unauthorised extension, you risk not only a fine but also an obligation to demolish. And you cannot claim against the previous owner if the limitation period has expired. Example with figures: in Fougères, an owner had to demolish a 30 m² conservatory built without a permit, costing €15,000, even though he had paid €5,000 more than the market price for it. No recourse possible.

For a tenant: you may be evicted if the dwelling is subject to a demolition order. The landlord must rehouse you, but it is no fun. If you suspect an illegal construction, report it to your insurer or the town hall before signing the lease.

For a buyer: this is the classic trap. Before buying, always check that all structures comply with the building permit. Ask for planning documents. If the seller cannot prove compliance, demand a warranty or walk away. In Bruz, a buyer lost 20% of the value of his house after having to demolish an unauthorised garage.

For a flat owner in a block of flats: if a unit includes an unauthorised part (for example, a covered terrace), the management company may be forced to request demolition. The costs will be shared among all flat owners. Prevention is better than cure.

If you are in this situation, you must act quickly: consult a lawyer specialising in town planning law. The limitation period for criminal proceedings is 6 years for continuing breaches, but the town hall can act at any time as long as the structure exists.

Four Tips to Avoid This Type of Dispute

• Check the building permit before any purchase: ask the seller to provide the permit and the certificate of compliance. If not possible, do a search at the town hall. It will cost you a few hours, but can save you years of litigation.
• Have a town planning survey carried out: more and more notaries offer this. This survey lists all structures and checks their compliance. Allow about €300 to €500. It is a small investment compared to the cost of demolition.
• Never build without authorisation: even for a garden shed of less than 20 m², a prior declaration is often necessary. In Fougères, an individual had to demolish a 15 m² hut because it was too close to the boundary. He thought it was “no big deal.”
• Regularise if possible: if you have inherited or bought an illegal structure, you can try to apply for a retrospective building permit. If the town hall accepts it (subject to compliance with the Local Town Planning Plan), you will avoid demolition. But beware, it is not automatic.

Further Reading: Related Case Law and Developments

The 1977 decision was followed by abundant case law. Notably, the Court of Cassation judgment of 15 February 1984 (No. 83-90.456) confirmed that “demolition may be ordered even if the defendant is in good faith.” More recently, the judgment of 8 December 2020 (No. 19-84.123) specified that the criminal court may order demolition even if the criminal proceedings are time-barred, provided the breach was established before the limitation period. In other words, the town hall can still act on the civil side after the criminal limitation has expired.

The trend of the courts is therefore towards severity. The judges consider that compliance with town planning rules is a matter of public interest that prevails over individual good faith. What this means for the future: buyers will have to be increasingly vigilant, and notaries will have to reinforce their duty to advise. A legislative reform could one day limit demolition to cases of bad faith, but for now, nothing is less certain.

In Practice: What to Do

FAQ — 5 Practical Questions

1. Can I be forced to demolish a structure I did not build myself? Yes, if you are the owner at the time the town hall acts. The 1977 case law confirms this.
2. Is there a time limit for the town hall to act? Criminal proceedings are time-barred after 6 years for continuing breaches, but the town hall can also act in civil proceedings without time limit as long as the structure exists.
3. What if I receive a letter from the town hall? Do not delay: consult a lawyer. You can try to regularise the situation by applying for a permit, or negotiate a settlement (fine in exchange for dropping proceedings).
4. Can I claim against the seller? Yes, if you prove he did not inform you of the irregularity. But this involves civil proceedings with costs. And if the seller is insolvent, you will recover little.
5. How much does a demolition procedure cost? Besides the cost of demolition (often several thousand euros), you will have legal fees (€2,000 to €5,000) and possibly damages. Prevention is better.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →