Illegal Construction: Who Sets the Financial Penalty, the Judge or the Administration?

Imagine for a moment: you are a property owner in Pont-l'Abbé, you have extended your house without authorisation. The criminal court convicts you for an offence under the French Town Planning Code. But who decides the amount of the financial penalty? The judge? The administration? And if the judge gets the jurisdiction wrong, what happens?

This seemingly technical question has very concrete consequences for any property owner or real estate professional. A decision of the Court of Cassation dated 6 March 1989 (No. 87-92.094) has ruled: when the construction exceeds the legal density limit (the maximum volume authorised per square metre of land), only the administration can demand the payment provided for by Article L. 333-10 of the Town Planning Code. The criminal judge, on the other hand, cannot impose this payment.

In short, if you are convicted for illegal construction, the court can order demolition or a fine, but not set the density excess tax. That is the administration's job. Why this distinction? And what should you do if you are affected? We explain everything.

The Facts: A Story That Happens Every Day

Mr X, a property owner within the jurisdiction of the Nîmes Court of Appeal, had built a construction without authorisation, or in breach of the obligations of his permit. The problem? The density of his construction exceeded the legal limit provided for by Article L. 112-1 of the Town Planning Code (now codified in Articles L. 331-1 et seq.). In short, he had built too many square metres in relation to the area of his land.

Brought before the criminal court for an offence under the Town Planning Code (Articles L. 480-4 and L. 480-5), he was found guilty. The court could have ordered the total or partial demolition of the construction, but it did not do so. However, it ordered Mr X to pay the payment provided for in Article L. 333-10, i.e. a sum of money corresponding to the density excess.

Mr X appealed. The Nîmes Court of Appeal, in a judgment of December 1987, upheld the conviction. But Mr X appealed to the Court of Cassation. He argued that the criminal judge did not have the power to impose this payment, as it was a debt due to the Treasury which fell within the exclusive jurisdiction of the administration.

The Court of Cassation agreed with him: it quashed the Court of Appeal's decision. The reasoning is simple: according to Article L. 333-10 of the Town Planning Code, when the court does not order demolition, only the administration can determine and recover the payment. The criminal judge had therefore exceeded his powers.

The Reasoning of the Court – Explained

The Court of Cassation relies on a strict reading of the texts. Article L. 333-10 of the Town Planning Code (in the version then in force) provides that 'when the court does not order demolition, it is for the administration to determine and recover the payment provided for in Article L. 333-10'. In other words, the legislator intended that the setting of this tax be an administrative prerogative, not a judicial one.

Why this distinction? The payment for exceeding the legal density limit (PLD) is a financial contribution due to the Treasury. It is not a criminal penalty, but a charge intended to compensate for the excess construction. Its determination involves technical calculations (area, land value, etc.) which the administration is better placed to handle than the judge.

The Court therefore reminds that the criminal judge, while he can impose a fine (Article L. 480-4) or order demolition (Article L. 480-5), cannot substitute himself for the administration in setting the amount of the payment. This is a matter of jurisdiction.

Note, however: this decision does not call into question the possibility for the judge to order demolition. If the court had ordered demolition, the administration could not have claimed the payment. But here, the court chose not to demolish, and therefore the administrative route was open.

What few people know is that this case law has been consistent since 1989. It has been confirmed several times. undefined, I have come across cases where property owners in Châteaulin had been ordered to pay significant sums by the court, when only the administration should have intervened. Result: the conviction was annulled.

What This Means for You – In Practice

If you are a landlord property owner: Have you built without a permit or exceeded the PLD? The court can order you to pay a fine and/or demolition. But it cannot impose the density excess tax on you. If the judgment does so, you can challenge it.

If you are a tenant: You are not directly affected, but if your landlord is convicted, it may affect the property (risk of demolition). Stay alert.

If you are a buyer: Before buying, check that the construction complies with the permit and the PLD. If illegal works exist, the administration could claim a payment after the sale. You could be held jointly liable if you are the new owner.

Let's take a numerical example: In Pont-l'Abbé, a property owner built a 30 m² conservatory without a permit, exceeding the PLD by 10 m². The land value is €200,000. The payment can represent up to 20% of the value of the excess land, i.e. several thousand euros. If the criminal judge orders payment, this order is illegal. It is the administration that must set the amount.

If you are in this situation, you must challenge the conviction before the Court of Appeal, invoking the judge's lack of jurisdiction. Time limit: 10 days to appeal a criminal judgment. Cost: expect €1,500 to €3,000 in legal fees, but this could save you from paying an unjustified sum.

Four Tips to Avoid This Type of Dispute

• Before building, check the PLD of your land. The legal density limit is indicated in the local town planning plan (PLU) of your municipality. In Pont-l'Abbé, for example, it is often 0.5 (i.e. 500 m² of construction for 1,000 m² of land). Do not exceed it.
• Always obtain a building permit for any new construction or extension. Even a small 20 m² conservatory may require a permit if it exceeds the threshold (generally 20 m² of floor area).
• If you buy a property, have a town planning survey carried out. A notary or a lawyer can check the compliance of existing constructions. This will avoid you inheriting the seller's mistakes.
• In the event of a dispute, do not pay without contesting. If the court orders you to pay a payment for density excess, ask your lawyer to check the jurisdiction. You can appeal and obtain the annulment of that part of the judgment.

Further Reading: Related Case Law and Developments

This 1989 decision is part of a consistent line. For example, the Court of Cassation ruled in a judgment of 16 February 1994 (No. 92-84.142) that the criminal judge cannot order the payment of the density excess tax, even if the defendant is convicted for lack of a permit. More recently, the Criminal Chamber reiterated this principle in a judgment of 10 September 2013 (No. 12-85.107).

The trend is therefore clear: the exclusive jurisdiction of the administration is firmly protected. This means that property owners must deal directly with the town hall or the departmental directorate of territories (DDT) to regularise their situation, rather than suffer a double judicial and administrative penalty.

For the future, the ALUR law of 2014 abolished the PLD for new constructions, but it remains applicable for older constructions and for certain areas. Stay vigilant.

In Practice: What to Do

1. Check your situation: Do you have a building permit? Does your construction comply with the PLD? If in doubt, consult your municipality's PLU or request a town planning certificate.
2. If you are being prosecuted: Do not automatically admit the facts. Contact a lawyer specialised in town planning law. He or she will be able to check whether the criminal judge has jurisdiction to claim the payment.
3. If the court orders you to pay the payment: Appeal within 10 days. The Court of Appeal's judgment can be quashed if the judge exceeded his powers.
4. If the administration demands payment from you: You can challenge the amount before the administrative court. A lawyer will help you negotiate a reduction or payment plan.

Are you 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 →