Demolition of a Building: When a New Law Protects the Owner During Proceedings

Imagine the scene: you are the owner of a house in Saint-Junien, built ten years ago with a planning permission. One day, your neighbours sue you seeking demolition of your extension, arguing that it exceeds the height allowed by the land use plan. The trial lasts months, then years. Suddenly, in 2015, the law changes: the conditions for obtaining a demolition are tightened. But you are already in the middle of the trial. Can this new law save you? This is exactly the question put to the Court of Cassation in the judgment of 23 March 2017 (No. 16-11.081).

Every owner asks themselves one day: "What if I am attacked for a building I built legally?" The answer often depends on the date the law changed. In short, the Court of Cassation ruled: a new law that changes the conditions for a demolition action applies immediately to ongoing situations, even if the trial has already started. But what does this actually change? Let's dive into this landmark decision.

What few people know is that this solution is based on a general principle: new laws govern the future effects of non-contractual legal situations. This directly concerns demolition actions based on the planning code. In other words, if the law relaxes the conditions for being protected, you can benefit from it even if your neighbours started proceedings before it came into force.

The facts: a story that happens every day

In Saint-Junien, Mr X, owner of a plot, built a dwelling house with planning permission. His neighbours, the Z couple, consider that the building violates the height rules of the land use plan (POS). They therefore sue him, on the basis of Article L. 480-13 of the planning code, in its 2006 version, which allowed demolition of an irregular building under certain conditions.

The High Court of Limoges, then the Court of Appeal, ruled in favour of the Z couple and ordered the demolition of the building. Mr X appealed to the Court of Cassation. Meanwhile, Law No. 2015-990 of 6 August 2015 amended Article L. 480-13: now, demolition can only be ordered if the building breaches "substantial" planning rules and if it was built without permission or in breach of permission. However, Mr X's building complied with the permission granted, even if it breached the POS.

The Court of Cassation set aside the appeal judgment: the Court of Appeal should have applied the new law, which was more protective of the owner. Indeed, the demolition action is a real action (relating to property) and is non-contractual. The effects of this legal situation (the alleged illegality) continued on the date the new law came into force. Therefore, it had to be applied immediately.

The reasoning of the court — explained

The Court of Cassation relies on a fundamental principle: the immediate application of new laws to the future effects of ongoing non-contractual legal situations. This principle is provided for by Article 2 of the Civil Code (the law only provides for the future), but the Court gives it a broad interpretation here. In short, as long as the situation is not fixed by a contract (such as a lease or sale), the new law governs the future consequences of that situation, even if it arose under the old law.

Concretely, Article L. 480-13 of the planning code, in its 2015 version, requires that the building be "built without planning permission or in breach of permission" to be demolished. However, Mr X had a valid permission. The new law thus removed the possibility of demolishing a building merely contrary to the POS, if it complies with the permission. The Court of Appeal, by applying the 2006 version, violated the law.

Note, however: this reasoning only applies to demolition actions based on Article L. 480-13, not to civil liability actions (Article 1240 of the Civil Code) which can also result in demolition. But in this case, only planning rules were at issue.

What few people know is that this decision is in line with consistent case law: the Court of Cassation applies the same principle to actions for nullity of sale, rent revision, etc. It is a confirmation, not a reversal.

What this changes for you — concretely

If you are the owner of a building constructed with planning permission, and your neighbours are demanding its demolition for non-compliance with planning rules, this decision is a powerful defensive weapon. Example: in Isle, an owner built a 30 m² garage with permission. The POS limits height to 3 metres, but the garage is 3.20 m. Under the old law, he risked demolition. Since the 2015 law, if permission was granted, demolition is no longer possible unless the breach is substantial and the permission was fraudulently obtained.

For a tenant: you are not directly affected, but if your landlord is threatened with demolition, you might have to leave the premises. This law therefore indirectly protects your home.

For a buyer: before buying, check that the building complies with the planning permission, because the new law only protects buildings built with permission. A building without permission remains vulnerable.

undefined, I have come across cases where owners, reassured by this case law, were able to negotiate a settlement with their neighbours rather than suffer costly demolition (expect between €10,000 and €50,000 to demolish an extension, not to mention legal costs).

Four tips to avoid this type of dispute

• Keep your planning permission and approved plans safe. This is the proof that your building is authorised. Without these documents, you cannot invoke the protection of the 2015 law.
• Before building, check the POS or PLU with the town hall. The rules on height, footprint, external appearance are often complex. Tip: request an operational planning certificate (valid for 18 months) which tells you the applicable rules.
• If you receive a demolition claim, do not delay in consulting a lawyer. The deadline to act is two years from completion of the works (Article L. 480-13). After this period, the action is time-barred.
• Check the date of entry into force of planning laws. If your trial is ongoing, a new law could change things. Keep informed of legislative developments (ALUR law, ELAN law, etc.).

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

Further reading: related case law and developments

The Court of Cassation had already applied this principle in a judgment of 17 November 2016 (No. 15-24.075) concerning the ALUR law of 2014 and the sale of a condominium unit. It confirmed that new laws govern the future effects of non-contractual situations. However, for contractual situations (such as a lease), the new law does not apply retroactively, unless expressly provided.

The trend of the courts is therefore favourable to the owner who has complied with their permission. This means that demolition actions are becoming rarer, with neighbours preferring to claim damages rather than demolition, which is more drastic.

In the future, the legislature may tighten the conditions again, but for now, the protection is solid.

Frequently asked questions

Can my building be demolished if it is less than two years old?
Yes, a demolition action is possible within two years of completion of the works. But if you have permission, the 2015 law protects you.

What if my neighbours sue me for demolition?
Consult a lawyer lawyer immediately. Check the date of the works, your permission, and the applicable law. You may claim the benefit of the new law if it is more favourable.

What is the cost of a demolition procedure?
Lawyer's fees can range from €2,000 to €10,000, depending on complexity. If demolition is ordered, demolition costs can reach €20,000 to €50,000.

Does the new law apply to planning permissions granted before 2015?
Yes, because it concerns the future effects of the situation (the alleged illegality), even if the permission is old.

Can I sell my house if a demolition action is ongoing?
Yes, but you must inform the buyer of the dispute. The buyer could then claim against you for hidden defects.

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