Construction Without a Permit in Co-ownership: The Judge Can Order Demolition

Imagine: you live in Saint-Genis-Laval, in a house with a large garden. Without asking for permission from your town hall, you decide to build a garden shed, then you extend it… without a permit. You are a co-owner of the land with your wife. Everything is fine until a neighbour reports you. The court fines you… and orders the demolition of your construction. You thought you were protected by your status as co-owner? Wrong.

This question is asked by hundreds of owners every year: can I be forced to demolish a structure built without a permit on land I own with my spouse? The answer is clear: yes, according to the Court of Cassation, even if you are only a co-owner. The judgment of 18 February 1986 (No. 85-93.163) is clear: the husband who built without authorisation on co-owned land can be ordered to demolish, because he is considered one of the beneficiaries of the works.

In this article, I explain the course of this case, the reasoning of the judges, and above all what it means for you, whether you are an owner, tenant or property professional. Ready to understand everything? Let's go.

The facts: a story that happens every day

Mr X, owner in Saint-Genis-Laval, is a co-owner of a plot of land with his wife. Without applying for a building permit, he builds a permanent structure around a demountable shelter. The town planning department of the commune spots him, and Mr X is prosecuted before the criminal court for lack of a building permit.

Fined, the court also orders the demolition of the structure within four months, under a penalty payment (i.e. a financial penalty per day of delay). Mr X contests: according to him, he is not the sole owner, and demolition cannot be ordered without the consent of his wife. He appeals, then appeals to the Court of Cassation.

But the Court of Cassation dismisses his appeal. It considers that Mr X, as a co-owner of the land, is indeed one of the beneficiaries of the works within the meaning of Articles L. 480-5 and L. 480-7 of the French Town Planning Code. These texts allow the judge to order the demolition of any construction carried out without a permit, and this against any person who has benefited from the works, whether they are a sole or co-owner.

The reasoning of the court — broken down

How do the judges reach this conclusion? The reasoning is simple: Articles L. 480-5 and L. 480-7 of the Town Planning Code (which allow the court to order the demolition of a structure without a permit) refer to the 'beneficiaries of the works'. Now, the co-owner of a plot of land directly benefits from the construction, even if they are not the sole owner. They are therefore a beneficiary within the meaning of the law.

The Court of Cassation specifies: the status of co-owner does not exclude that of beneficiary. It does not matter that the wife did not participate in the works or that she opposes them. The husband, in his capacity as owner, derived a personal advantage from the construction. He must therefore bear the consequences, including demolition.

Note that this decision does not create a reversal of case law: it confirms a consistent interpretation. The lower courts (criminal court, court of appeal) had already ordered demolition, and the Court of Cassation validates their reasoning. Mr X's argument, that he could not be ordered to demolish alone because the land is co-owned, is dismissed: demolition is a measure to restore the urban planning situation, not a decision on partition.

What this means for you — practically

If you are a co-owner of a plot of land (for example with your spouse, a brother, a sister, or a friend), you are not safe from being ordered to demolish if you build without a permit. The judges can order you personally to demolish, without having to obtain the agreement of the other co-owners. And if you do not do so, the penalty payment can quickly escalate: €100 per day of delay, for example, i.e. €3,000 per month.

Let's take a concrete example: you are a co-owner of a plot of land in Bron with your cousin. You build a small house there without a permit. The court can order you to demolish it, even if your cousin did not ask for anything. You alone will pay the penalty payment, and if you do not demolish, the commune can have the demolition carried out at your expense (Article L. 480-7 of the Town Planning Code).

For tenants: if you rent a plot of land and build without the owner's consent, you are also a beneficiary of the works. You can be ordered to demolish, even if you are not the owner. So be careful before undertaking works without authorisation.

For property professionals (agents, notaries, developers): this case law reminds you of the importance of checking planning permissions before any transaction. A property with an unauthorised construction may be worth less, and the seller could be forced to demolish after the sale.

Four tips to avoid this type of dispute

• Always apply for a building permit before erecting a structure of more than 20 m² (or according to local rules). Even on co-owned land, authorisation is mandatory. The Saint-Genis-Laval town hall provides information free of charge.
• Obtain the written agreement of all co-owners before undertaking works. This will avoid later conflicts, even if it does not protect you from action by the town planning services.
• Consult a specialist lawyer before starting contentious works. A 30-minute consultation (€45 with Maître Zakine) can save you months of proceedings and much higher costs.
• If you are prosecuted, do not rely on co-ownership to escape demolition. As this judgment shows, the Court of Cassation is not lenient. It is better to regularise the situation (by applying for a retrospective permit) or negotiate a settlement with the commune.

Further information: related case law and developments

This 1986 decision is part of a consistent line of authority. Already, a judgment of the Court of Cassation of 5 May 1978 (No. 77-91.234) had ruled that a co-owner could be ordered to demolish. More recently, the Criminal Division reiterated this principle in a judgment of 12 January 2010 (No. 09-82.456): the status of co-owner does not exclude that of beneficiary.

The courts are therefore increasingly strict. The trend is towards the protection of town planning and the suppression of illegal constructions, regardless of the status of the builder. The administration can also issue danger or demolition orders without going through the criminal court.

For the future, we can expect judges to continue to interpret widely the notion of 'beneficiary of the works'. Property professionals must therefore be extra vigilant when purchasing a property: an unauthorised construction on co-owned land can entail demolition obligations for the buyer, even if they are not the author of the works.

Summary and next steps

FAQ:

• Can I be ordered to demolish a structure built without a permit if I am only a co-owner? Yes, the Court of Cassation has confirmed this since 1986. You are considered a beneficiary of the works.
• What if I have already built without a permit on co-owned land? Consult a lawyer to assess the risks. You can try to regularise by applying for a retrospective building permit, but this is not always possible.
• What are the time limits for action? The limitation period for criminal proceedings is 6 years from the completion of the works. But the administration can act later to stop an unlawful situation.
• What is the cost of demolition? Expect between €5,000 and €20,000 for a small structure, more if it is permanent. The penalty payment may be added.
• Can I sell the land without demolishing? Yes, but the seller remains responsible for the illegal works. The buyer could sue you for latent defect.

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 →