Construction Without a Permit: Late Regularisation Does Not Erase the Offence

Imagine the scene: you have just bought a house with a sea view in Douarnenez. To enjoy the horizon, you build a covered terrace without applying for a building permit, thinking that a small extension will go unnoticed. A few months later, a disgruntled neighbour reports the work to the town hall. You rush to submit a permit application, which the administration grants. Problem solved? Not so fast. The Court of Cassation, in a judgment of 2 October 1981, ruled: the grant of a permit after construction does not erase the offence committed at the time of the work. This decision, still relevant today, reminds us of a golden rule in planning law: the permit must be obtained before, not after.

How many owners, in Plouhinec or elsewhere, fall into this trap? Many think that an administrative "catch-up" is enough to regularise their situation. However, the judges consider that the offence is constituted from the start of the work without authorisation. It does not matter if you obtain a permit later: you have already violated Articles L. 421-1 and L. 480-4 of the Planning Code, which require a permit before any new construction. Regularisation cannot erase the past.

What are the concrete risks? A fine of up to several thousand euros, and above all, an order for demolition of the illegal construction. In the case heard by the Grenoble Court of Appeal, confirmed by the Court of Cassation, the owner was sentenced to a fine of 500 francs (a modest sum at the time) and demolition of his construction. Today, the amounts are much higher. So, before undertaking any work, a simple question: do you have your permit?

The facts: a story that happens every day

Mr Bernard, owner of a plot of land in Douarnenez, one day decides to erect a building without applying for a building permit. The work progresses, and the building rises from the ground. But a neighbour, or perhaps a municipal officer, notices the irregularity and reports it. The town hall initiates criminal proceedings. Mr Bernard is prosecuted before the criminal court for lack of a building permit, in violation of Articles L. 421-1 and L. 480-4 of the Planning Code.

In an attempt to escape conviction, Mr Bernard submits, after the start of the work, an application for a building permit. The administration grants it. Armed with this document, he argues before the Grenoble Court of Appeal that the offence has disappeared, since the construction is now regularised. But the Court of Appeal does not agree: on 26 September 1980, it sentences him to a fine of 500 francs and orders the demolition of the construction. Mr Bernard appeals to the Court of Cassation.

Before the Court of Cassation, the debate is clear: can a permit granted after construction extinguish the offence? The High Court answers in the negative. It recalls that the offence is constituted at the time of the construction without a permit, and a subsequent permit cannot erase it. The judgment of the Court of Appeal is upheld. Mr Bernard must pay the fine and demolish his construction, even though he now has a valid permit.

The reasoning of the court — dissected

To understand the decision, we must return to the logic of criminal planning law. Article L. 421-1 of the Planning Code provides that "anyone wishing to undertake a construction [...] must, beforehand, obtain a building permit". Article L. 480-4 punishes with a fine the execution of work without a permit. These texts are clear: the obligation is prior. The key moment is the start of the work. If at that moment you do not have a permit, you are in breach, full stop.

The judges of the Court of Cassation reasoned in two stages. First, they note that Mr Bernard undertook his construction without a permit. The offence is therefore "characterised", i.e. perfectly constituted. Next, they examine the argument of regularisation. Can it nullify the past offence? The answer is no, for a simple reason: a criminal offence is a factual reality that does not disappear by a subsequent administrative act. The subsequent permit has no retroactive effect. It cannot "erase" what has already been done.

This decision is a confirmation of consistent case law. As early as 1974, the Court of Cassation had already ruled to the same effect. It is therefore not a reversal, but a classic application of the principle of legality of offences and penalties. The magistrates rejected Mr Bernard's argument, which invoked a kind of "prescription" or automatic "regularisation". No, they said, once the offence is committed, it remains punishable, unless the law expressly provides for a ground for extinction (such as amnesty or prescription of the public action). However, planning law does not provide that obtaining a permit after the work extinguishes the offence.

This reasoning still applies today. If you build without a permit, even if you obtain one later, you can be convicted. The courts show no leniency: compliance with planning rules is a priority, because planning affects the public interest (safety, environment, landscape).

What this means for you — concretely

For landlord owners: if you build an extension without a permit to increase the lettable area, and you obtain a permit afterwards, you risk a fine (up to €300,000 and 6 months' imprisonment, under Article L. 480-4) and demolition. Concrete example: a covered terrace of 30 m² in Plouhinec, value €15,000. You built it without a permit, then regularise. The court may order demolition at your expense (about €5,000) and sentence you to a fine of €10,000. Regularisation does not protect you.

For tenants: you are generally not responsible for the owner's work. But if you rent a property built without a permit, be aware that the owner may be forced to demolish, which will deprive you of housing. Check that your lease mentions compliance with planning rules. In case of problems, you can claim damages for disturbance of enjoyment.

For buyers: before buying a house, demand a certificate of non-contestation of the permit or a certificate of conformity. If you buy a property with unauthorised constructions, you inherit the risks. The previous owner may be prosecuted, but the demolition order will affect you. Have a planning diagnostic carried out by a professional.

For co-owners: if the managing agent carries out work without a permit (e.g., creation of a common terrace), each co-owner may be prosecuted. Subsequent regularisation does not exonerate them. Ensure that the managing agent obtains all permits before the start of the work.

Four tips to avoid this type of dispute

• Before any work, check whether a permit is required. Contact the planning department of your town hall (in Douarnenez, for example). For a simple fence, a permit is not always required, but for an extension or new construction, yes. Do not rely on what your neighbour or a tradesman says: the law is strict.
• Submit your permit application early enough. The processing time is 2 to 3 months on average. Do not start work before receiving the permit order. If you start without one, you are in breach from the first shovel.
• If you have already built without a permit, do not count on regularisation to exonerate you. Consult a specialist lawyer to assess the risks. Regularisation may avoid demolition in some cases (if the permit complies with the local plan), but it will not protect you from a criminal fine.
• Keep all your documents: permit, plans, completion declarations. In case of inspection, you must prove that the work complies with the permit. If you have built without a permit, gather evidence of the date of the work (photos, invoices) to discuss the prescription of the public action (3 years from the completion of the work).

Further reading: related case law and developments

The 1981 decision is part of a consistent line. For example, a judgment of the Court of Cassation of 14 December 1993 (No. 92-86.822) confirmed that the grant of a building permit after completion of the work does not bar criminal proceedings. More recently, the Criminal Chamber reiterated this principle in a judgment of 23 January 2018 (No. 17-80.028), concerning a construction without a permit on the coast.

The trend is towards severity. The courts consider that administrative regularisation cannot erase a criminal offence, as that would render the prior control of planning meaningless. However, a notable development: the ALUR law of 2014 strengthened sanctions and facilitated demolition orders. Now, the mayor can even issue a stop-work order.

For the future, some advocate for a regulated "criminal regularisation", but for now, the case law remains firm. If you are in a delicate situation, it is better to act quickly: the prescription of the public action is 3 years after completion of the work. After this period, you can no longer be criminally prosecuted (unless the work is clandestine).

What you absolutely must remember

FAQ:

• Can I obtain a permit after building without one? Yes, but this does not protect you from criminal prosecution. You risk a fine and demolition.
• What should I do if I am prosecuted for building without a permit? Consult a lawyer immediately. You can plead good faith, prescription (if the work dates back more than 3 years) or negotiate a settlement with the administration (payment of a fixed fine in exchange for dropping the proceedings).
• How long after the work can I be prosecuted? The public action is time-barred after 3 years from the date of completion of the work. After this period, you cannot be criminally convicted, but the administration can still demand demolition by civil means.
• Is demolition automatic? No, the court may order it or not, depending on the seriousness of the offence, the planning impact, and the good faith of the builder. But if the construction is located in a protected area (coast, mountain), the risk is high.
• Can I sell a property built without a permit? Yes, but you must inform the buyer (duty of loyalty). If you do not, he can sue you for latent defect or fraud. The notary may refuse to draft the deed if the non-conformity is blatant.

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 →