Expropriation: The judge cannot review formalities preliminary to public utility

Imagine: you are the owner of a house in Anglet, in the Pyrénées-Atlantiques, which you inherited from your parents. One morning, you receive a registered letter: the municipality is initiating an expropriation procedure to create a bypass road. You wonder: have the formalities been properly observed? Was the public inquiry regular? You want to challenge it before a judicial judge, the one who fixes the compensation. But is that possible?

The answer is no, as the Court of Cassation ruled in a judgment of 9 January 1985 (no. 83-70.230). This decision, still relevant today, strictly delimits the powers of the expropriation judge (the magistrate who fixes the amount of compensation): he cannot verify whether the formalities preliminary to the declaration of public utility (DUP) have been carried out, even if the parcel inquiries and the public utility inquiry were conducted simultaneously. In other words, the review of the regularity of the administrative procedure falls within the jurisdiction of the administrative judge, not the judicial judge.

But what does that actually change for you? This ruling clarifies the division of jurisdiction between the two orders of courts. For an expropriated owner, this means that he must act quickly before the administrative court to challenge the DUP or the inquiry, and not before the expropriation judge. After a certain period, the regularity of the procedure can no longer be challenged, and only the amount of compensation can be disputed.

The facts: a story that happens every day

Mr. X, owner of land in Oloron-Sainte-Marie, sees his plot targeted by a municipal development project. The municipality of Pinsaguel, in Haute-Garonne, needs his land to create a business park. In accordance with Article R11-21 of the Expropriation Code, the prefect ordered a joint inquiry: the public utility inquiry and the parcel inquiry are conducted simultaneously to save time.

Mr. X challenges the expropriation order (the judge's decision transferring ownership) before the Court of Cassation. His main argument: the parcel inquiry did not comply with the minimum period provided for by Article R11-20 of the Expropriation Code. He argues that the prefectural decree opening the parcel inquiry is dated 9 June 1982, but that the inquiry did not last long enough. According to him, the expropriation judge should have verified this point before ordering the transfer of ownership.

The Court of Cassation dismisses his appeal. It recalls that the expropriation judge does not have the power to review the regularity of the formalities preliminary to the DUP, even in the case of concurrent inquiries. This review falls within the exclusive jurisdiction of the administrative judge. In short, Mr. X should have applied to the administrative court within two months of the publication of the DUP to challenge the duration of the inquiry. He did not do so.

The reasoning of the court — dissected

The Court of Cassation relies on a fundamental distinction between two phases of expropriation: the administrative phase (which leads to the DUP and the parcel inquiry) and the judicial phase (which fixes the compensation and orders the transfer of ownership). The judicial judge, seised of the judicial phase, cannot challenge the regularity of the administrative phase. This is known as the principle of separation of administrative and judicial authorities, inherited from the law of 16-24 August 1790.

Article L12-1 of the Expropriation Code (then in force) provides that the expropriation judge can only verify the regularity of the expropriation order with regard to the documents submitted to him. He cannot review prior administrative acts, such as the prefectural decree ordering the inquiry or the declaration of public utility. In this case, the Court specifies that even when the inquiries are concurrent (Article R11-21), the judicial judge remains incompetent to assess compliance with the time limits of the parcel inquiry.

The decision confirms constant case law: the expropriation judge is a judge of compensation, not a judge of legality. Mr. X's arguments, although solid on the merits (the inquiry period may not have been respected), are dismissed because they were presented before the wrong court. However, note: if the DUP is annulled by the administrative judge, the expropriation judge may draw the consequences and refuse to fix compensation. But as long as the DUP is not annulled, it is binding on him.

What this changes for you — practically

For an expropriated owner, this decision has major practical implications. If you are in this situation, you must act quickly: the appeal against the DUP or the parcel inquiry must be brought before the administrative court within two months of their publication. After this period, you can no longer challenge the regularity of the procedure, and the expropriation judge can only fix compensation on the basis of a procedure that appears regular.

Let's take a concrete example: in Oloron-Sainte-Marie, the municipality expropriates a plot to build a school. The owner, Mr. Dupont, notes that the public inquiry lasted only 14 days instead of the regulatory 15 days. If he seises the expropriation judge to challenge this point, his request will be rejected. On the other hand, if he seises the administrative court within two months of the publication of the prefectural decree, he may obtain the annulment of the DUP, which stops the entire procedure.

For tenants, the situation is different: they are not parties to the expropriation, but may be compensated for their loss. But here again, the expropriation judge is not competent to verify the regularity of the DUP. For purchasers of an expropriated property, be vigilant: if the procedure is tainted by irregularity, you could be deprived of your property without effective recourse if the time limits have passed.

undefined, I have encountered cases where owners had lost all recourse because they waited too long. A piece of advice: as soon as the expropriation project is notified, consult a specialised lawyer to identify the competent court.

Four tips to avoid this type of dispute

• Act immediately after notification of the DUP: As soon as the prefectural decree declaring the public utility is published, note the date. You have two months to contest it before the administrative court. Do not delay.
• Check the inquiry time limits: The public utility inquiry must last at least 15 days, the parcel inquiry at least 8 days. If these time limits are not respected, this is a ground for annulment. Keep all documents.
• Do not confuse the courts: The expropriation judge (judicial court) is competent for compensation, the administrative judge (administrative court) for the legality of the procedure. Seise the right one.
• Consult a lawyer before any action: A procedural error can cost you dearly. A lawyer specialised in property law will guide you to the competent court and the appropriate remedies.

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation has always refused to recognise a power of review for the expropriation judge over the administrative phase. We can cite a judgment of 13 December 1972 (no. 71-70.219) which already established this principle. More recently, the Court of Cassation recalled in a judgment of 6 July 2017 (no. 16-20.976) that the expropriation judge cannot assess the regularity of the DUP, even if it is manifestly irregular.

The trend is therefore clear: the separation of powers is strictly applied. What few people know is that this rule can work in favour of owners: if the administrative judge annuls the DUP, the expropriation judge must take it into account and may order the return of the property. But you must have acted in time before the administrative judge.

In the future, reforms could simplify the procedure, but for now, this division remains. In practice, owners must be vigilant and not let the time limits pass.

Checklist before taking action

• 1. Time limit for appealing the DUP: 2 months from the publication of the decree. After this period, the DUP becomes final.
• 2. Time limit for appealing the expropriation order: 15 days from its notification. But this appeal can only relate to defects in the order itself, not the DUP.
• 3. Compensation: The expropriation judge must fix fair and prior compensation. If the procedure is regular, this is the only possible debate.
• 4. If irregularity is discovered after the time limit: It is too late to challenge the DUP. You can only discuss the amount of compensation.
• 5. Liability action: If you suffer loss due to an irregular procedure, you can bring a liability claim against the administration before the administrative judge, but this is a more complex route.

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