Construction Without a Permit: Tacit Permission Does Not Erase the Offence

You have bought a lovely plot of land in Villefranche-sur-Mer, with a sea view, and you dream of building a villa there. Work begins, but a question gnaws at you: "What if I don't get the planning permission in time?" Rest assured, the law provides for tacit permission if the administration does not respond within the time limits. But be careful: if you start work before obtaining this permission, you commit an offence that does not disappear even if the permission is granted later. This is what the Court of Cassation reminded us in a judgment of 19 March 1992. Analysis.

The Facts: A Story Like Many Others

Mr. X, a property developer, had started the construction of a housing development in the commune of Villefranche-sur-Mer. Without waiting for the planning permission, he had begun the works. He filed an application for an amending planning permission to regularise his situation and relied on a tacit permission obtained due to lack of response within the time limits. But the facts were clear: the works had started without authorisation. The criminal court fined him 800,000 francs (approximately €122,000). Mr. X appealed, arguing that the tacit permission regularised his situation. The Court of Cassation did not follow this argument.

The Reasoning of the Court — Analysed

The Court of Cassation upheld the conviction. It relied on Article L. 421-1 of the French Urban Planning Code (now codified in Articles L. 421-1 et seq.), which provides that any construction must be preceded by a planning permission. The offence is constituted as soon as the works begin without permission. In other words, the offence is consummated at the moment the first stone is laid. However, a tacit permission obtained later, even if valid, cannot erase an offence already committed. This is the principle of the anteriority of the offence. The judges also rejected the argument that the amending permission sought would have regularised the situation. In short, you cannot build first and ask for permission afterwards.

What This Means for You — Practically

This decision has important practical implications. For a landlord in Menton, for example, if you start major renovation works without permission, you risk a fine of up to €300,000 and a prison sentence (6 months for repeat offenders). And if you obtain a tacit permission during the works, it does not exonerate you. For a buyer, check that the seller has obtained all permissions before purchasing. If you are a tenant and your landlord builds without permission, you can report the works to the town hall. undefined, I have come across cases where owners thought they could regularise afterwards: they had to demolish the construction at their own expense. Do not take this risk.

Four Tips to Avoid This Type of Dispute

• Wait for the permission before starting work: even if the administration is slow, do not start before having written authorisation.
• Submit your application to the town hall sufficiently early: allow at least 2 months for a single-family house, 3 months for a block of flats.
• Keep all receipts of submission: they prove the date of your application, useful in case of dispute.
• If in doubt, consult a lawyer lawyer: a simple check can save you years of proceedings.

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Further Reading: Related Case Law and Developments

This decision is part of consistent case law. As early as 1984, the Court of Cassation had ruled that a planning permission obtained after the start of works does not cover the offence (Crim., 15 May 1984). Today, the courts are even stricter: they require that the permission be obtained before the commencement of works. The trend is towards increased repression of illegal constructions, especially in sensitive areas such as the Mediterranean coast. In the future, expect more frequent checks by planning departments.

In Practice: What to Do

FAQ:
Can I start work if I have submitted my application? No, you must wait for the written approval or the two-month period (for a single-family house) without a negative response.
What if I have already built without permission? Consult a lawyer immediately. You can file a regularisation application, but be aware that the offence remains punishable. It is better to negotiate a settlement with the town hall.
What is the limitation period? The criminal prosecution for construction without a permit is time-barred after 6 years from the completion of the works.
Can I sell a property built without permission? Yes, but the seller must inform the buyer, otherwise he may be liable for hidden defects.

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