Illegal Construction and Eviction: The Cour de cassation Protects the Home

Imagine: you own a house in Collioure, with a sea view. One day, your neighbour builds a hut without planning permission at the bottom of his garden, which encroaches on your land or blocks your access. You start proceedings. The court orders demolition and eviction of the occupants. Everything seems won. But what if the occupants are a family with children, settled there for years? Must the judge really throw them out on the street without considering their personal situation?

This is precisely the question decided by the Cour de cassation in a judgment of 16 January 2020 (No. 19-10.375). A court of appeal had ordered the demolition of buildings erected in violation of planning rules and the eviction of their occupants. But it did so on a ground held to be irrelevant: that the eviction only concerned buildings used as dwellings. The High Court reminds us that this is not enough: it must be concretely examined whether these measures are proportionate with regard to the right to respect for private and family life and the home, protected by Article 8 of the European Convention on Human Rights.

In short: even in the case of illegal construction, the judge cannot order eviction without weighing the interests at stake. A decision that shakes the walls of victim owners, but protects good faith occupants. Analysis.

The Facts: A Story That Happens Every Day

Mrs G. is the owner of a plot in a town near Perpignan. On a neighbouring plot, buildings were erected without planning permission, in violation of local planning rules. These buildings are occupied by people who live there, sometimes for several years. Mrs G. suffers damage: obstructed view, loss of value of her property, nuisance. She sues the owner of the neighbouring plot and the occupants before the interim relief judge to obtain demolition of the buildings and eviction of the occupants.

On 14 November 2018, the Paris Court of Appeal gave a judgment in favour of Mrs G.: it ordered the demolition of the buildings and the eviction of all occupants. To justify its decision, the court of appeal relied on a simple ground: 'the eviction only concerns buildings used as dwellings'. In other words, since the buildings are illegal, their occupants have no right to remain in the premises. Eviction would therefore be automatic.

But the occupants did not see it that way. They appealed to the Cour de cassation. Their argument: the court of appeal did not verify whether the eviction measure was proportionate with regard to their right to respect for their private and family life and their home. Indeed, some occupants live there with their children, have their ties in the neighbourhood, and have no other housing. Throwing them out without consideration for their personal situation would be a disproportionate interference with their fundamental rights.

The Cour de cassation agreed with them. By a judgment of 16 January 2020, it quashed the court of appeal's decision and referred the case back to another formation of the Paris Court of Appeal. Reason: the court of appeal based its decision on an irrelevant ground (the fact that the eviction only concerned buildings used as dwellings) without concretely examining, as requested, whether these measures are proportionate with regard to the right to respect for private and family life and the home.

The Reasoning of the Court — Analysed

The Cour de cassation recalls a fundamental principle: even in the presence of an illegal construction, the judge cannot order demolition and eviction without verifying that these measures do not disproportionately interfere with the right to respect for private and family life and the home, guaranteed by Article 8 of the European Convention on Human Rights.

In domestic law, the action for demolition is based on Article 1240 of the Civil Code (formerly 1382), which provides that 'any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation'. Construction without a permit constitutes a fault, and the victim owner may claim reparation in kind, i.e. demolition. The eviction of the occupants is a consequence of this demolition.

However, the Cour de cassation recalls that the right to property is not absolute. It must be reconciled with other fundamental rights, notably the right to respect for private and family life and the home. This latter right is not reserved to titular tenants: it applies to any person who occupies a living space in a stable manner, even without a title. Thus, occupants without any right or title may invoke Article 8 to oppose eviction, provided they demonstrate that it would have serious consequences on their personal life.

The court of appeal made an error in considering that the mere fact that the buildings were used as dwellings was sufficient to justify eviction. This is an 'irrelevant ground', i.e. an argument that has no logical connection with the question posed. It is not because buildings are inhabited that it is necessarily proportionate to demolish them and evict their occupants. The concrete situation must be examined: how long have the occupants been there? Do they have children in school? Do they have alternative housing? What is the impact of the construction on the neighbour?

In other words, the judge must carry out a 'balance of interests': on one side, the owner's right to obtain reparation for his damage; on the other, the occupants' right not to be brutally deprived of their home. This is a proportionality review that the Cour de cassation imposes, in line with the case law of the European Court of Human Rights (ECtHR).

undefined, I have encountered cases where owners victims of illegal constructions have succeeded, but where eviction was delayed by several months to allow the occupants to rehouse. Sometimes, the judge even refuses demolition if the owner's damage is minor compared to the occupants' situation. It is a delicate balance.

This decision is not a reversal: it is part of a trend of the Cour de cassation to protect good faith occupants, even in cases of unlawful occupation. It confirms that the right to housing sometimes prevails over the right to property, but not absolutely.

What This Changes for You — Concretely

If you are an owner victim of an illegal construction, this decision does not prevent you from obtaining demolition and eviction. But it requires you to demonstrate that your damage is sufficiently serious to justify such a radical measure. You will need to provide concrete evidence: photos, testimonies, expert reports, to prove that the construction causes you an abnormal neighbourhood disturbance (loss of view, overshadowing, noise nuisance, depreciation of your property). And above all, you must anticipate the occupants' argument about their private and family life. If you are in this situation, you must build a solid case from the start, gathering all evidence of the damage and demonstrating that the occupants have alternative housing solutions.

If you are a tenant or occupant without title of an irregular construction, this decision is a protection. The judge will have to examine your personal situation before ordering your eviction. You can invoke your length of stay, your children's schooling, your local ties, your lack of rehousing solution. For example, in Canet-en-Roussillon, a family living for 5 years in a building without planning permission, with children attending the village school, could obtain a stay of eviction or even a dismissal of the claim if the owner does not demonstrate serious damage.

However, this protection is not absolute. If you are in bad faith (for example, if you yourself built without permission knowingly), the judge may order eviction without leniency. Similarly, if the owner suffers serious damage (risk of collapse, obstruction of a right of way necessary for his land), the balance will tip in his favour.

For real estate professionals (agents, notaries, developers), this decision reminds of the importance of verifying the compliance of constructions before any transaction. A buyer who purchases a property with illegal constructions may be refused eviction of the occupants, or may have to compensate them. This is a risk to be integrated into eviction guarantees.

A concrete example: in Collioure, a villa with sea view is worth on average €500,000. If an illegal construction partially blocks the view, the loss of value can be 10 to 20%, i.e. €50,000 to €100,000. But if the occupants are a family with three children, the judge might consider eviction disproportionate and award you only damages, without demolition. Hence the importance of an adapted legal strategy.

Four Tips to Avoid This Type of Dispute

• Before buying land or a house, check planning permissions. Consult the planning certificate, the local urban plan (PLU) and the building permits issued. In Canet-en-Roussillon, the town hall provides this information free of charge. Do not hesitate to use a surveyor to verify boundaries and surfaces.
• Have a compliance audit carried out by an architect or a design office. If you buy a property with recent constructions, require the seller to provide building permits and completion declarations. When in doubt, a suspensive condition can protect you.
• If you are a victim of an illegal construction by your neighbour, act quickly. Start interim relief proceedings to stop the disturbance. Gather evidence (photos, bailiff's report, witness statements). The longer you wait, the more the occupation becomes established and the harder it will be to obtain eviction.
• In case of eviction, favour an amicable solution. Offer a departure indemnity to the occupants, or a period to rehouse. The judge will be more inclined to order eviction if you demonstrate your goodwill. Avoid using force: an eviction without a court decision is illegal and can backfire.

Further Reading: Related Case Law and Developments

This decision is part of a line of judgments of the Cour de cassation protecting the home even in cases of unlawful occupation. For example, in a judgment of 30 October 2013 (No. 12-21.255), the Court had already held that the interim relief judge could not order eviction of an occupant without title without verifying that the measure was proportionate with regard to Article 8 of the European Convention. Similarly, the European Court of Human Rights, in the case of McCann v. the United Kingdom of 13 May 2008, condemned the eviction of a family without examination of their personal situation.

The trend is therefore clear: judges must increasingly reconcile the right to property with the right to respect for private and family life. This means that owners can no longer rely on automatic eviction, even in cases of illegal construction. In the future, we can expect courts to require owners to demonstrate urgency or seriousness of the damage, and to propose alternative solutions (rehousing, compensation) before ordering demolition.

What few people know is that this protection can also work in favour of the owner: if you yourself are an occupant of an irregular dwelling, you can invoke Article 8 to obtain a stay or compensation. But beware: if you built knowingly, your good faith will be contested.

Frequently Asked Questions

Can I be evicted if I occupy a building without planning permission for several years? Yes, but the judge must verify that eviction is proportionate to your personal situation. If he considers that you have no alternative housing and your family life is stable, he may refuse eviction or grant you a stay.

What should I do if my neighbour builds illegally and it disturbs me? Gather evidence (photos, bailiff's report) and apply to the interim relief judge to stop the disturbance. If the construction is completed, you can claim demolition on the basis of Article 1240 of the Civil Code.

What are the time limits for obtaining a decision? In interim proceedings, you can obtain an order within a few weeks. But if the case is referred to the merits (as in our decision), it may take several months or even years.

What is the cost of demolition proceedings? Excluding lawyers' fees, you should budget for bailiff costs (around €200), expert fees (€1,000 to €3,000) and court costs. Lawyers' fees vary depending on complexity, but a first 30-minute consultation with Maître Zakine is €45.

Can I obtain damages instead of demolition? Yes, if the judge considers demolition disproportionate, he may award you damages to compensate for your loss. This is an alternative solution.

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 →