Illegal Construction: When the Neighbour Cannot Demand Demolition Himself

You live in Barberaz, and your neighbour has built a garden shed without planning permission, encroaching on your land. You are furious, you file a complaint: the criminal court sentences him to demolish it under a penalty payment. Relieved, you wait. But months go by, and nothing happens. You then ask the judge to enforce the penalty payment and to have the demolition carried out yourself. Warning: the Court of Cassation has just told you that you are not entitled to do so. Why? Because the demolition was ordered as part of the public prosecution, and only the public prosecutor can demand its enforcement. This is what we are going to break down.

But then, what can you do if your neighbour does not comply with the judgment? Does this decision leave you helpless? Not entirely. There are other avenues, but they are different. Understanding this distinction is essential for any property owner faced with an unlawful construction.

In this article, I will explain the facts, the judges' reasoning, and above all what this changes for you in practical terms, whether you are a property owner, tenant or property professional. I will also give you practical tips to avoid this type of dispute, and I will answer the questions I am most often asked in my office.

The facts: a story that happens every day

Mr. X, owner of a house in Barberaz, sees his neighbour build an extension without planning permission. This construction encroaches on a right of way (the right to pass over the neighbour's land to access his own) that has existed for decades. Mr. X files a complaint. The Chambéry criminal court, seised of the offence, finds the neighbour guilty of construction without a permit (Article L. 480-4 of the Town Planning Code) and sentences him to a fine of €5,000. In addition, it orders the demolition of the illegal construction within six months, under a penalty payment of €50 per day, and states that this demolition must be recorded by a bailiff.

The neighbour demolishes nothing. Mr. X, exasperated, seises the criminal court again to request the enforcement of the penalty payment (i.e. the calculation of the amount due) and that the demolition be carried out by him at the neighbour's expense. But the Grenoble Court of Appeal, and then the Court of Cassation, reply: you have no standing to act. Why? Because the demolition and the penalty payment were ordered in the context of the public prosecution (the one exercised by the Public Prosecutor's Office to punish a criminal offence). However, only the Public Prosecutor's Office can request the enforcement of these measures. Mr. X is a private individual: he can claim damages for his personal loss, but not the implementation of the criminal penalty.

The reasoning of the court — explained

The Court of Cassation, in its judgment of 16 December 2014 (No. 13-87.390), approves the reasoning of the Court of Appeal. It notes that 'the claimant had no standing to request that a measure taken in this case as part of the public prosecution be enforced by himself'. In other words, when the criminal judge orders a demolition, he does so in the name of society, to put an end to an offence. It is a measure of general interest. The individual who has suffered harm may join the public prosecution as a civil party to obtain compensation for his personal loss, but he cannot substitute himself for the prosecutor to demand enforcement of the criminal penalty.

This decision is based on Articles 2 and 3 of the Code of Criminal Procedure, which distinguish the public prosecution (brought by the Public Prosecutor's Office) from the civil action (brought by the victim). Article L. 480-5 of the Town Planning Code allows the criminal judge to order demolition, but this is a measure that falls under the public prosecution. The victim can only claim damages or, in certain cases, restoration of his land in civil proceedings, but not the enforcement of the criminal penalty payment.

What few people know is that this decision confirms settled case law. It is neither a development nor a reversal. On the other hand, it reminds litigants of a rule that is often misunderstood: do not confuse public prosecution and civil action. If you are the victim of an illegal construction, you can act on two levels: criminal (to have the offence punished) and civil (to obtain compensation for your loss). But the two actions have different rules.

What this changes for you — in practice

For neighbouring property owners: if your neighbour builds without a permit and the criminal court orders demolition, you cannot, on your own initiative, ask the judge to enforce the penalty payment or to have the demolition carried out. That is for the Public Prosecutor to do. How to react? You must report the non-compliance to the prosecutor, who may then seise the sentence enforcement judge. But beware: the prosecutor is not obliged to act. If nothing happens, your only option is to bring a civil action before the judicial court to obtain demolition on the basis of abnormal neighbourhood disturbance (Article 1240 of the Civil Code, which requires reparation for damage caused by fault). In this context, you can obtain an order to demolish under a penalty payment, and you can then request enforcement of that penalty yourself.

Concrete example: imagine a property owner in La Motte-Servolex whose neighbour has built an overhanging terrace on his garden. The criminal court ordered demolition, but nothing moves. The owner can write to the Chambéry prosecutor to inform him. If the prosecutor does not react (which often happens due to lack of resources), the owner will have to bring a civil action. Expect around €1,500 to €3,000 in lawyer's and expert's fees, and a delay of 6 to 12 months to obtain a judgment. But this second civil judgment can be enforced by the owner himself.

For tenants: this is not your direct problem, but if you are a tenant of a property neighbouring an illegal construction, you also suffer the nuisance. You can join the criminal proceedings as a civil party to claim damages, but not demolition.

For property professionals (estate agents, notaries, developers): this decision concerns you if you advise a client who buys land neighbouring a construction without a permit. Mention in the sale deed that the seller undertakes to regularise or bear the consequences. Otherwise, the purchaser risks ending up in the same situation as Mr. X.

Four tips to avoid this type of dispute

• 1. Check the authorisations before buying: Before acquiring a property, ask the seller to provide the building permits and certificates of conformity. If recent constructions are not authorised, require regularisation before the sale.
• 2. Report suspicious constructions to the town hall: If you see a neighbour building without a permit, alert the planning department of your municipality (Barberaz, La Motte-Servolex…). The town hall can draw up an official report and refer the matter to the prosecutor. This is often quicker than an individual action.
• 3. In case of a criminal conviction, do not remain passive: If the court orders demolition, monitor the execution. At the slightest delay, write to the prosecutor reminding him of the judgment. Keep evidence (photos, bailiff's report).
• 4. Consider a civil action in parallel: As soon as you notice the disturbance, you can sue your neighbour before the judicial court on the basis of abnormal neighbourhood disturbance. This will allow you to obtain a decision that you can enforce yourself, without depending on the prosecutor.
• 5. Consult a lawyer lawyer: Every situation is unique. A lawyer will help you choose the best strategy: criminal action, civil action, or both. A quick consultation can save you years of proceedings.

Further reading: related case law and developments

The Court of Cassation has handed down several decisions in the same vein. For example, in a judgment of 12 November 2008 (No. 07-87.398), it held that the civil party cannot request the demolition ordered in criminal proceedings if that measure was imposed as part of the public prosecution. On the other hand, if the criminal judge orders demolition as part of the civil action (at the request of the victim), then the victim can request its enforcement. This distinction is subtle but crucial.

The trend of the courts is clear: they want to prevent private individuals from substituting themselves for the Public Prosecutor's Office. This avoids abusive requests and preserves the role of the prosecutor in the enforcement of sentences. But it sometimes leaves victims without an effective remedy, especially when the prosecutor is overwhelmed.

For the future, one can hope for better coordination between planning departments and the prosecution service. Some town halls, such as that of Chambéry, have set up monitoring cells for illegal constructions. But in the meantime, the best advice remains not to rely solely on the public prosecution.

Summary and next steps

FAQ:

• Can I request the enforcement of the penalty payment if my neighbour does not demolish? No, if the penalty payment was imposed in criminal proceedings. Only the prosecutor can do so. You must bring a civil action to obtain a new penalty payment.
• What if the prosecutor does not act? Apply to the judicial court in interim proceedings (emergency procedure) on the basis of abnormal neighbourhood disturbance. You will obtain a decision that you can enforce.
• What is the cost of a civil action? Expect between €1,500 and €5,000 for a full procedure, depending on complexity. Legal aid may be available if your income is modest.
• Can I obtain damages? Yes, as a civil party in criminal proceedings or through a separate civil action. You must prove your loss (loss of property value, loss of enjoyment, etc.).
• What is the time limit for taking action? The civil action is time-barred after 5 years from the day you became aware of the disturbance. For criminal proceedings, the limitation period is 3 years from the offence for minor offences (lack of permit), 6 years for more serious offences.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

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