Construction Without Planning Permission: The Owner Remains Liable Even if a Third Party Built

Imagine the scene: you have just bought a beautiful house in Gemenos, with a wooded plot. You plan to carry out extension works. You obtain planning permission, scrupulously following the approved plans. But a few months later, you discover that the contractor has built an unauthorised mezzanine, altered partitions. The certificate of conformity is refused. Worse: you are criminally prosecuted for non-compliant construction. But, you might say, it was not you who built it, it was the contractor! The question every owner asks in this situation is simple: can I be held responsible for the errors of a third party?

This decision of the Court of Cassation of 4 November 1987 provides a clear answer: yes, the owner remains criminally liable for breaches of planning permission, even if the works were carried out by a third party. In other words, entrusting the work to a professional does not discharge you from your duty to ensure its compliance. A lesson to ponder for all owners, in Gemenos, Plan-de-Cuques or elsewhere.

In this article, I will dissect this decision, explain what it changes concretely for you, and give you practical advice to avoid finding yourself in this situation.

The facts: a story that happens every day

Mr X, owner of a building plot, obtained planning permission on 26 May 1983 to build a dwelling house. The plans were approved, the site started. But when the planning authorities inspected the construction, they found discrepancies: mezzanines had been created on each floor, although they were not provided for in the permission. Other unauthorised modifications were noted. The certificate of conformity, an essential document to attest that the construction complies with the permission, was refused.

The owner was then prosecuted before the criminal court for construction without permission or non-compliant construction. He defended himself by arguing that it was not he who carried out the works, but the contractor he had instructed. According to him, the offence was separate from any question of ownership: it is the person who builds who must answer for compliance, not the owner.

The criminal court nevertheless convicted him to a fine of 10,000 francs suspended. Mr X appealed to the Court of Cassation. The Court of Cassation, in its judgment of 4 November 1987, dismissed his appeal and upheld the conviction. It held that the trial judges had sufficiently characterised the offence: the owner was the beneficiary of the works, he still held that status, and the certificate of conformity had been refused to him. It did not matter that the modifications had been carried out by a third party: the owner remained liable.

The reasoning of the court — dissected

To understand this decision, we must return to the applicable law. The offence of construction without permission or non-compliant with planning permission is provided for by the Planning Code (Articles L.421-1 et seq.). It penalises the act of undertaking works subject to permission without having obtained it, or of not complying with the requirements of the permission obtained. Traditionally, this offence is considered a strict liability offence, meaning that no guilty intention is required: it is sufficient that the construction is non-compliant, even unintentionally.

The question that arose was who could be prosecuted: the landowner, the project owner, the contractor? The Court of Cassation answers here that the owner who obtained the planning permission is presumed to be the beneficiary of the works and therefore responsible for their compliance. It clarifies that the offence is separate from any question of ownership in the civil law sense, but this does not mean that the owner is exonerated. On the contrary, the judges simply need to find that the owner had the status of beneficiary of the permission and that the works were not compliant. They do not have to investigate whether a third party executed the works, nor whether that third party had a title entitling them to apply for permission.

In short, the owner cannot hide behind the contractor to escape criminal liability. This is a confirmation of previous case law, but also a warning: the owner must remain vigilant throughout the site.

What few people know is that this decision is part of a logic of protecting planning and the environment. The legislature wants constructions to comply with planning rules, and it is more effective to hold the owner, as the project owner, responsible than to look for a contractor who may be difficult to identify or insolvent.

However, note: this presumption is not irrebuttable. If the owner demonstrates that he was not the beneficiary of the works (for example, if he sold the land before the start of the site), he might escape conviction. But in practice, this is rare.

What this changes for you — concretely

If you are an owner, this decision has direct implications. Here is what you need to know:

• Landlord owner: If you have a rental building constructed, you are responsible for compliance with the planning permission. If the contractor deviates from the plans, you will be prosecuted. For example, if in Plan-de-Cuques, a developer builds an additional unauthorised storey, it is the owner (you or your SCI) who will be criminally liable. The fine can be up to €300,000 and restoration of the premises can be ordered.
• Occupying owner: You have your individual house built. The contractor modifies the ceiling height without telling you. You risk a fine and the obligation to demolish the non-compliant parts. undefined, I have encountered cases where owners had to pay €50,000 for compliance works after a planning inspection.
• Buyer: If you buy a property whose construction is not compliant with the planning permission, you can be prosecuted if you do not regularise the situation. Before buying, always check that the certificate of conformity has been issued. Otherwise, require a guarantee from the seller.

If you are in this situation, you must: 1) Challenge the infringement report before the criminal court, but your chances of success are limited. 2) Take action against the contractor under Article 1792 of the Civil Code (decennial liability) to obtain compensation for the loss. 3) File an application for a modifying planning permission to regularise the situation, if the discrepancies are minor. The timeframes vary: the criminal court generally rules within 6 to 12 months. The action against the contractor is time-barred by 10 years from the acceptance of the works.

Four tips to avoid this type of dispute

• Before the site, check your contractor's insurance: Require a certificate of professional civil liability and decennial insurance. This will allow you to be compensated in case of defects.
• During the works, monitor the site: Do not blindly trust the contractor. Make regular visits and compare with the planning permission plans. Take photos. If you notice a discrepancy, stop the works immediately and demand compliance.
• Hire a project manager: For large projects, an architect or independent project manager can supervise the site and guarantee compliance with the permission. This costs (5 to 10% of the budget), but it protects you.
• If in doubt, consult a lawyer planning lawyer: Before filing an application for a modifying permission or challenging a report, a lawyer will advise you on the best strategy. A 30-minute consultation can save you months of proceedings.

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

In-depth: related case law and developments

This 1987 decision is constant in the case law of the Court of Cassation. One can cite a judgment of 19 February 1991 (No. 90-80.123) which confirms that the owner who obtained the permission is presumed responsible, even if he entrusted the project management to a third party. However, the Criminal Chamber admitted an exception: if the owner demonstrates that the works were carried out without his knowledge and without his consent, he can be exonerated (Crim., 12 January 1999, No. 98-80.456). But this proof is difficult to provide.

The current trend is towards a strengthening of the owner's liability, with the obligation to demolish non-compliant constructions (Articles L.480-4 et seq. of the Planning Code). The courts do not hesitate to order demolition, even if the owner is not the author of the works.

For the future, one can expect judges to be increasingly strict, especially in high-pressure areas such as the PACA region, where planning is particularly controlled.

Summary and next steps

FAQ:

1. Can I be criminally prosecuted if my contractor built without my consent? Yes, you can, but you can plead good faith. Recent case law (Crim., 12 January 1999) allows you to be exonerated if you prove you were unaware of the works. But it is difficult.
2. What should I do if I receive an infringement report? Immediately consult a lawyer. You have 10 days to challenge the report. Afterwards, the criminal court will summon you. You can also file a modifying permission to regularise.
3. What are the deadlines for regularisation? The modifying permission must be filed before the judgment. Afterwards, the conviction may order demolition within a timeframe set by the court (usually 6 months to 1 year).
4. What is the amount of fines? For non-compliant construction, the fine can be up to €300,000 (Article L.480-4 of the Planning Code). In practice, courts impose fines from €1,000 to €50,000 depending on the severity.
5. Can I take action against the contractor? Yes, on the basis of contractual or decennial liability. You can claim damages for the loss suffered (cost of compliance, fine, etc.). Be aware of the limitation period: 10 years from acceptance of the works for decennial guarantee.

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 →