Demolition of Illegal Structures: Can Municipalities Still Act After Transfer of Competences?

Imagine you are a property owner in Nice, in the Cimiez district. You built a veranda without planning permission a few years ago. The town hall served you with a formal notice to demolish it, but you contested: "The urban planning competence has been transferred to the Nice Côte d'Azur Metropolitan Area, so the municipality no longer has the right to intervene!" This is exactly the type of situation that the Court of Cassation ruled on in January 2021.

This question regularly arises in my practice, both in Grasse and Mont-de-Marsan. With the proliferation of intercommunal bodies, many property owners think that municipalities have lost their policing powers in urban planning matters. But what is the reality?

The decision of 21 January 2021 provides a clear answer: the municipality retains, concurrently (that is, at the same time) with the public establishment for intercommunal cooperation (EPCI), the standing to act in the demolition or regularization of an illegal structure. Let's see what this means concretely for you.

The Facts: A Story That Happens Every Day

Mr. Martin, owner of a villa in Vallauris, had built a 25 m² garden shed in 2018 without applying for planning permission. In 2019, the municipality of Vallauris, after detecting the breach, served him with a formal notice to demolish the structure based on Article L. 480-14 of the French Planning Code (which allows authorities to request the demolition of illegal constructions).

Mr. Martin contested this formal notice before the administrative court. His argument? Since 2016, the competence for the local urban plan (PLU) had been transferred to the Sophia Antipolis Agglomeration Community (CASA). According to him, the municipality therefore no longer had standing (that is, the right) to act in urban planning matters, including demolition procedures.

The administrative court ruled in favour of Mr. Martin, considering that the transfer of competences deprived the municipality of its power to act. The municipality appealed, but the administrative court of appeal confirmed this judgment. Plot twist: the municipality appealed to the Court of Cassation, arguing that it retained a special policing power independent of the transfer of competences.

The Court of Cassation therefore had to decide this fundamental question: can a municipality that has transferred its PLU competence to an EPCI still act in the demolition of illegal structures? The answer has implications for thousands of property owners on the French Riviera.

The Court's Reasoning — Explained

The Court of Cassation conducted a meticulous analysis of the texts. It relied mainly on Article L. 480-14 of the French Planning Code (which organizes procedures for the demolition of illegal structures) and Article L. 422-3 of the same code (which deals with transfers of competences).

Here is the judges' reasoning, simplified: Article L. 480-14 expressly gives municipalities the power to act in demolition or regularization. This power falls under what is called the "special policing" of urban planning, distinct from the competence to develop PLUs. In other words, even if a municipality transfers its competence to establish urban planning rules (the PLU), it retains its power to enforce these rules.

The Court thus quashed (that is, annulled) the ruling of the administrative court of appeal, considering that it had violated Article L. 480-14 by refusing to apply the text to the municipality. It recalled a fundamental principle: the transfer of competences for PLU matters does not entail (does not mean) the transfer of all urban planning powers.

This reasoning confirms consistent case law: municipalities remain the primary actors in urban planning policing within their territory. undefined, I have encountered cases where property owners thought they could escape municipal controls after transfers of competences. This decision puts an end to these hopes.

But what exactly does this change for property owners? The answer is simple: you can be pursued both by the intercommunal body AND by the municipality for the same breach. This doubles the risks of litigation.

What This Means for You — Concretely

If you are a landlord in Nice, this decision means that you must be particularly vigilant about the regularity of your constructions. The Nice Côte d'Azur Metropolitan Area can inspect you, but so can the Nice town hall. Concretely, if you have carried out works without permission in a flat you rent out, you risk two parallel procedures.

For tenants, the implication is different: if your landlord has carried out illegal works in the accommodation you occupy, you could be affected by a demolition procedure. In this case, consult a solicitor quickly to know your rights, particularly regarding rent reduction or termination of the lease.

Purchasers must be extra cautious. Before buying a property in Vallauris, check not only the planning permissions with CASA, but also the absence of litigation with the municipality. A simple undeclared veranda can lead to a costly demolition procedure: expect between €5,000 and €15,000 to demolish and restore, not to mention fines that can reach €6,000 per illegal square metre.

For co-owners, the situation is even more complex. Imagine that a co-owner installed air conditioning on the façade without permission. The municipality can demand its demolition, engaging the liability of the entire co-ownership. If you are in this situation, you must act quickly to regularize or stop the illegal works.

Be careful, however: this dual competence can also be an opportunity. If a procedure is initiated by the intercommunal body, you might sometimes negotiate with the municipality for a more favourable solution. It all depends on the local context.

Four Tips to Avoid This Type of Dispute

• Always Check Competences: before any construction or modification project, inquire with the town hall AND the intercommunal body to know who is competent to grant permissions. On the French Riviera, situations vary from one municipality to another.
• Always Apply for Permission: even for works that seem minor to you (garden shed, fence, pergola), consult the urban planning department. A prior declaration costs less than €100, whereas a demolition procedure can cost thousands of euros.
• Regularize Old Situations: if you carried out works without permission several years ago, you can sometimes regularize them retrospectively. The limitation period (that is, the period after which the administration can no longer act) is 6 years from the completion of the works, but exceptions exist.
• Consult a Professional Before Acting: an architect or specialized solicitor can help you avoid costly mistakes. undefined, I have seen too many property owners regret acting alone to save a few hundred euros.

Deep Dive: Related Case Law and Developments

This decision fits into consistent case law. Already in 2015, the Council of State had affirmed the principle of concurrent competence of municipalities (CE, 13 July 2015, No. 374388). The novelty of the 2021 ruling is that it clarifies this principle in the context of transfers of competences to intercommunal bodies, which are increasingly frequent.

A previous divergent decision had sown doubt: in 2018, an administrative court of appeal had considered that the transfer of competences deprived the municipality of its power to act. The Court of Cassation has ended this uncertainty, thereby strengthening legal certainty.

What few people know: this case law could evolve with the reform of local authorities. The legislature might be tempted to clarify competences to avoid duplication. But for now, the trend in the courts is clear: municipalities remain fully competent to enforce urban planning rules within their territory.

For the future, this means that property owners will have to deal with two levels of administration. How to respond? By being particularly rigorous in respecting the rules, and by anticipating possible inspections.

Checklist Before Acting

Here is what to do if you are considering works or if you are facing a procedure:

1. Identify the Competent Authorities: contact the town hall and the intercommunal body to know their respective competences in urban planning matters.
2. Check the Need for Permission: even for small works, consult the PLU and the national urban planning regulations (RNU).
3. Submit a Complete Application: provide all required documents to avoid delays or refusals.
4. Monitor Deadlines: the administration generally has 2 to 3 months to respond to a prior declaration, 3 to 5 months for planning permission.
5. Consult in Case of Litigation: if you receive a formal notice, do not delay in seeking legal advice. The time limits for appeal are short (generally 2 months).

Do you find yourself 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 →