Illegal Construction: Can I Take Action Against the Seller?

Imagine: you have just bought a lovely villa in La Ciotat, with a panoramic terrace overlooking the sea. A few months later, the administration notifies you of a demolition order: the terrace was built without planning permission by the previous owner. You must demolish it at your own expense, under penalty of a fine. What should you do?

I have seen this situation dozens of times in my practice. The natural instinct is to take action against the seller. But criminal law prohibits punishing someone who did not commit the offence (principle of personal liability for penalties). The seller built illegally, not you. However, the planning law orders demolition 'in the event of a conviction', without specifying who must pay.

The French Supreme Court resolved this crucial question on 22 November 2006: the restitution measures (demolition, reinstatement) provided for in Article L.480-5 of the Planning Code are not criminal penalties. Consequently, nothing prevents the buyer from obtaining a contractual guarantee from the seller, if the seller has so undertaken in the sale deed. Explanations.

The Facts: A Story That Happens Every Day

Mr Y, owner of a plot of land in Istres, built a structure without complying with planning regulations. Criminally convicted, the court ordered the demolition of the structure and the reinstatement of the land, in accordance with Article L.480-5 of the Planning Code. However, in the meantime, Mr Y had sold the property to a company, Palmetto. It was therefore this company, as the new owner, that was required to carry out the demolition.

Palmetto challenged this: it had not committed the offence and could not be sentenced to a penalty. The Tribunal de grande instance of Istres ruled in its favour, holding that the demolition was a personal penalty. But the Court of Appeal of Aix-en-Provence reversed this judgment, ordering the demolition. The company appealed to the Supreme Court.

The debate was therefore as follows: is the demolition ordered under Article L.480-5 a criminal penalty (which can only be imposed on the perpetrator of the offence) or a restitution measure (which can be enforced against any owner)?

The Reasoning of the Court — Analysed

The Supreme Court dismissed the appeal, upholding the appeal judgment. It relied on two texts: Article 121-1 of the Criminal Code (principle of personal liability for penalties) and Article L.480-5 of the Planning Code. It explained that the measures provided for by the latter text — demolition, reinstatement, cessation of use — do not constitute criminal penalties. They are restitution measures, i.e., measures intended to restore the premises to their former state, regardless of the person who caused the damage.

In other words, the criminal judge may order the demolition of an illegal construction even if the current owner is not the perpetrator of the offence. The demolition order is attached to the property, not to the person. In short, if you buy a property with unauthorised works, you risk having to demolish them, even if you are not responsible.

What few people know is that this solution is part of a consistent line of case law: since the 1990s, the Supreme Court has considered the measures under Article L.480-5 to be civil remedies, not penalties. The 2006 ruling firmly reiterates this, specifying that nothing prevents the buyer from securing a contractual guarantee. Thus, if the seller has promised in the deed that the construction was compliant, the buyer can take action on the basis of the warranty against latent defects (Article 1641 of the Civil Code) or the warranty of title.

What This Means for You — Practically

For the buyer of a property with illegal construction, this decision is a double-edged sword. On one hand, it confirms that you may be compelled to demolish, even if you did nothing wrong. On the other hand, it opens the way for a claim against the seller, if you have taken care to include a guarantee clause in the deed.

Take a concrete example: in La Ciotat, you buy a house with an undeclared swimming pool. The seller built it without planning permission. Two years later, the town hall orders you to fill it in under penalty of a daily fine of €500. The cost of filling is €15,000. You can sue the seller under the warranty against latent defects, because the illegal swimming pool constitutes a defect that renders the property unfit for its intended use. But be careful: you must prove that the seller knew of the illegality (which is often the case) and that you have not waived the warranty.

If you are a landlord, you must be vigilant: if your tenant builds without authorisation, you will be pursued for demolition, even if you are not the perpetrator. undefined, I have come across cases where the landlord had to pay €20,000 for demolition due to a conservatory installed by a tenant. The solution: insert a clause in the lease prohibiting any modification without written consent, and regularly inspect the premises.

For a co-owner, it is the management company that is responsible for the common parts. If a co-owner carries out illegal works on a common part (for example, an extension on the roof), the management company may be ordered to demolish, and the cost will be shared among all co-owners. Hence the importance of passing resolutions authorising legal action against the defaulting co-owner.

Four Tips to Avoid This Type of Dispute

• Require a planning diagnosis when purchasing: Before signing, ask the seller for a planning certificate or a statement of non-contravention. Your notary can verify the compliance of the constructions with the Local Planning Plan (PLU).
• Carry out a boundary survey and a risk assessment: A surveyor will check that the constructions do not exceed the property boundaries. In Istres, a client discovered that his garage encroached on the neighbouring plot: the boundary survey avoided a lawsuit.
• Include a specific guarantee clause in the sale deed: Have your notary draft a clause whereby the seller guarantees that all constructions are compliant and undertakes to reimburse the demolition costs in the event of a contravention. This is the best protection.
• Check planning permissions before leasing: If you are a landlord, ask the tenant to provide you with a copy of any building permit or prior declaration before works. Insert a forfeiture clause in the lease in case of unauthorised works.

Further Analysis: Related Case Law and Developments

This decision is part of a consistent line of case law. As early as 1995, the Supreme Court had ruled (Civ. 3e, 18 January 1995, no. 92-18.886) that the demolition ordered under Article L.480-5 was a restitution measure, enforceable against any owner. The 2006 ruling confirms and clarifies that this measure may be imposed on the buyer, even if the offence was committed by the seller.

More recently, the Court extended this reasoning to periodic penalty payments (Civ. 3e, 10 July 2013, no. 12-19.413): the penalty payment accompanying the demolition order is due by the owner, even if not criminally convicted. However, the question of the contractual guarantee was clarified in another ruling (Civ. 3e, 7 December 2017, no. 16-25.003): if the sale deed does not contain an express clause, the seller is not required to guarantee the buyer, unless the seller committed fraud or the construction is affected by a latent defect.

The trend is therefore towards holding successive owners responsible, while offering avenues of recourse through contractual guarantees. In the future, we can expect notaries to systematise guarantee clauses, and buyers to be more vigilant. The ALUR law of 2014 has, moreover, strengthened information on planning risks.

Checklist Before Acting

FAQ: Practical Questions

1. Can I refuse to demolish if I have just bought the property? No. The demolition order is attached to the property; you must comply. However, you can take action against the seller if you have a guarantee clause or if the construction constitutes a latent defect.
2. What are the time limits for taking action against the seller? An action for latent defects must be brought within two years of the discovery of the defect (Article 1648 of the Civil Code). An action for contractual liability is subject to a five-year limitation period from the sale.
3. How much does a demolition procedure cost? In addition to the demolition costs (often €10,000 to €50,000 depending on the construction), you must factor in legal fees (€1,500 to €5,000) and any expert fees. Mediation may be less expensive.
4. What if the seller is insolvent? You can try to obtain compensation from the notaries' guarantee fund (if the notary failed in their duty to advise) or, if the seller is a company, inquire about possible director liability.

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