Construction without planning permission: expropriation compensation due after limitation period for the offence has expired

Imagine: you are the owner of a house in Gémenos, in the Bouches-du-Rhône. In 1951, you built a garage to park your car, without applying for planning permission. At the time, the rules were unclear, and no one said anything. Fifteen years later, the local authority decides to expropriate your land for a development project. The expert appointed by the judge values your land… but refuses to compensate for the garage, because it was built illegally. You are left out of pocket by several thousand euros. Is that fair?

This is exactly the question the Court of Cassation decided in 1965. And its answer is clear: once the criminal offence (construction without planning permission) has become time-barred, the owner regains the right to full and complete compensation. In other words, the administration cannot penalise you indefinitely for a mistake made years earlier.

This judgment, delivered by the Court of Cassation on 2 April 1965 (appeal no. 63-70.241), has become a reference for thousands of cases. It protects the good faith owner who built without permission, once criminal proceedings are no longer possible. Let us look together at the facts, the reasoning of the judges, and what this means for you, whether you are an owner in La Ciotat, Marseille or elsewhere.

The facts: a story that happens every day

Mr X, owner of a plot of land in Lyon, had built a garage in 1951 without obtaining the required planning permission. At the time, the regulations were less strict, and many owners acted in this way, sometimes out of ignorance, sometimes out of negligence. For years, no one complained. In 1962, the public authority initiated expropriation proceedings for reasons of public utility on his land. The expropriation judge (the court competent to fix the compensation) appointed an expert to value the property.

The expert valued the bare land, but refused to include the value of the garage in the calculation of compensation. His argument: the garage was built without permission, it is an unlawful construction. Consequently, the owner is not entitled to compensation for this construction, because it is the result of an offence. Mr X contested this approach. He appealed to the Lyon Court of Appeal, which found in his favour on 24 October 1963. The court held that the offence (construction without planning permission) was time-barred, because more than three years had passed since the facts (the limitation period at the time). Therefore, the owner could no longer be criminally prosecuted, and his construction should be considered as regularised in fact for compensation purposes.

The administration appealed to the Court of Cassation. It argued that the limitation of the offence does not make the construction lawful: it remains contrary to the law, and therefore not compensable. But the Court of Cassation dismissed the appeal by a judgment of 2 April 1965, confirming the decision of the Court of Appeal. It held that once the offence is time-barred, the owner is entitled to compensation for the building erected without permission on his expropriated land.

The reasoning of the court — explained

To understand the decision, one must distinguish two levels: the criminal level and the civil (or compensatory) level. On the criminal level, building without planning permission is an offence: it is a violation of planning regulations. In 1951, the limitation period for this offence was three years (today, it is six years for summary offences, but the principle remains the same). Once this period has elapsed, the administration can no longer prosecute the owner before the criminal court. The offence is 'time-barred': it is legally extinguished.

On the civil level, expropriation compensation aims to compensate for the loss of the property. The principle is that the owner must be compensated for the real value of his property, including the constructions on it, even if they were built without authorisation. Why? Because expropriation is a procedure that deprives the owner of his property: it should not be an opportunity for the administration to make savings at the expense of an owner who made an old mistake.

The Court of Cassation relies on a logical reasoning: if the offence is time-barred, the owner can no longer be punished. However, refusing compensation would amount to punishing him a second time, indirectly. This would be contrary to the spirit of limitation, which aims to ensure legal certainty and to prevent old acts from being indefinitely sanctioned. The Court adds that the unlawfulness of the construction is not an obstacle to compensation as long as it is no longer sanctionable.

This judgment is a confirmation of previous case law: it is not a reversal. Already, the Court of Cassation had ruled in the same sense in a judgment of 4 November 1959 (no. 58-70.112). The trend is constant: the good faith owner should not be doubly penalised. The lower courts (tribunals and courts of appeal) regularly apply this principle, notably in the jurisdictions of Marseille, Lyon and Paris.

What this means for you — practically

For the owner landlord: if you have built an extension, garage or shed without permission, and your land is expropriated, you are entitled to compensation including the value of that construction, provided that the offence is time-barred. For example, if you built a 20 m² garage in 2010 in La Ciotat, and the expropriation takes place in 2025, the limitation period (6 years for a summary offence) has expired. You will be compensated for the value of the garage, estimated between €15,000 and €25,000 depending on quality.

For the tenant: if you have carried out improvements without the owner's consent, this case law does not protect you directly, because you are not the owner of the land. However, if you are expropriated of your leasehold interest, the compensation may take into account the constructions you have built, under the same conditions of limitation.

For the purchaser: before buying a property, check whether constructions have been made without permission. If the offence is time-barred, you are protected. Otherwise, the administration could require demolition or reduce compensation in case of expropriation. A legal due diligence (search for prior existence) is recommended.

For the co-owner: in a condominium, if a co-owner has built a veranda without permission on common parts, the situation is more complex. But the principle of limitation may operate in his favour if the offence is old.

If you are in this situation, you should: 1) check the date of construction; 2) calculate the limitation period (6 years for a planning summary offence, 3 years for offences prior to 1994); 3) gather evidence of the age (photos, invoices, witness statements); 4) consult a solicitor specialising in property law to assess your rights.

Four tips to avoid this type of dispute

• Keep all documents relating to your constructions: invoices, plans, dated photos, correspondence with the town hall. They will serve you to prove the age of the construction in case of expropriation or inspection.
• Make a prior declaration or apply for planning permission retrospectively: if you have built without authorisation, you can regularise your situation by filing an application for a modified planning permission. This ends the offence and avoids future problems.
• Consult a solicitor before any expropriation: as soon as you receive an expropriation notice, do not sign anything without advice. A specialised solicitor will help you assert your rights, particularly to obtain compensation including time-barred unlawful constructions.
• Check the limitation period before buying: if you buy a property with unauthorised constructions, ask the seller to provide evidence of the date of construction. If the offence is time-barred, you are safe. Otherwise, negotiate a price reduction or require regularisation before the sale.

Further reading: related case law and developments

The 1965 decision is part of a consistent line. As early as 1959, the Court of Cassation had ruled (judgment no. 58-70.112) that the limitation of the planning offence prevented the administration from refusing compensation. More recently, the Court clarified that even if the construction is irregular, it must be compensated if it is integrated into the land and the offence is time-barred (Civ. 3e, 17 March 2010, no. 09-10.470).

The courts apply this principle flexibly. For example, the Lyon Court of Appeal, in the case decided in 1963, had already held that limitation extinguishes the criminal action and therefore the unlawfulness in the compensatory sense. Today, the limitation period for planning summary offences is six years (Law of 17 June 1998). This means that for a construction built in 2019, the offence will be time-barred in 2025. The judges are therefore called upon to apply the same solution to more recent constructions.

The trend is clear: the good faith owner should not be penalised indefinitely. However, be careful: if the construction was made in violation of a public utility easement (for example, in a flood zone), the compensation may be reduced even if the offence is time-barred, because the risk remains. This is an important nuance.

Summary and next steps

FAQ:

• Can I be compensated for a construction without planning permission if the offence is time-barred? Yes, according to the Court of Cassation (judgment of 2 April 1965). Limitation extinguishes the unlawfulness in the compensatory sense.
• What is the limitation period for a planning offence? It is six years for summary offences committed after 1994, and three years for offences prior to that. Check the date of your construction.
• What should I do if the administration refuses compensation? Apply to the expropriation judge (tribunal judiciaire) by providing proof of limitation (certain date of construction). A solicitor is strongly recommended.
• Does this decision apply to all types of constructions? Yes, provided that the offence is a planning summary offence (lack of permission). For more serious offences (construction in a protected area), the solution may be different.
• Must I regularise my construction even if the offence is time-barred? It is not compulsory, but it is advisable: it avoids any future dispute and facilitates sale or expropriation.

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