Expropriation: the court must refuse the transfer of ownership if the heirs have not been sought

Imagine: you have lived in Istres for thirty years, in the family home inherited from your parents. One morning, you receive a letter from the town hall informing you that your land is affected by a public utility project and that a parcel inquiry will be opened. Except that the letter is addressed to… your father, who died five years ago. You were never informed, and the project advances without you being able to assert your rights. This absurd situation, however, happened to an owner in Martigues, and gave rise to an important decision by the Court of Cassation on 7 March 2024.

The question that every owner concerned by an expropriation asks is simple: "Does the administration have the right to take my property without even notifying me?" The answer is no, but the judge must check that all formalities have been respected. And if the expropriating authority has not taken the trouble to search for the heirs of the deceased owner, the judge must refuse to order the transfer of ownership.

This decision, handed down by the third civil chamber of the Court of Cassation, reminds us of a fundamental requirement: expropriation is an exceptional procedure that deprives an individual of their right to property, protected by the Constitution and the European Convention on Human Rights. Therefore, all legal guarantees must be scrupulously respected, in particular individual notification to owners and their successors in title. In short, if the administration does not demonstrate that it has carried out serious searches to find the heirs, the judge cannot validate the transfer. Let us look together at the facts, the reasoning of the judges, and what this changes for you.

The facts: a story that happens every day

The case begins in Martigues, in the Bouches-du-Rhône. An owner, whom we will call Mr. O, owned a plot of land included in a planned development zone (ZAC). Unfortunately, Mr. O died on 27 November 2020, before the opening of the parcel inquiry. The expropriating authority, probably the municipality or the public body in charge of the project, nevertheless launched the expropriation procedure. But instead of actively searching for the heirs of Mr. O, it simply sent notifications to the deceased's address and posted a certificate at the town hall indicating "unsuccessful searches".

The heirs, who were never informed, discovered the truth much later. The expropriation judge (the competent judicial court) was faced with a simple question: can it order the transfer of ownership when the administration has not justified that it searched for the heirs? At first instance, the judge accepted the transfer, considering that the posting at the town hall was sufficient. But the heirs, assisted by a lawyer, appealed. The Court of Appeal ruled in their favour: the administration had not proved that it had carried out sufficient steps to find the heirs. The expropriating authority then appealed to the Court of Cassation.

The twist? The Court of Cassation dismissed the administration's appeal and upheld the Court of Appeal's judgment. It held that the mere mention of unsuccessful searches on the posting certificate was not sufficient to establish the existence of such searches. In other words, the administration must concretely demonstrate what it did: did it consult the succession register? Did it contact the notary? Did it send registered letters to the last known addresses? None of this was proved. The decision is therefore exemplary: it protects heirs against a summary procedure.

The reasoning of the court — analysed

The heart of the decision is based on Article L. 132-4 of the Expropriation Code (which requires individual notification of the filing of the parcel inquiry dossier to each owner concerned, by registered letter with acknowledgement of receipt). This text provides that if the owner has died, the expropriating authority must carry out the necessary steps to identify his heirs and notify them of the filing of the dossier. The Court of Cassation further recalls that the expropriation judge is required to verify that all formalities prescribed by law have been completed before ordering the transfer of ownership.

In this case, the Court of Appeal had found that the administration was aware of Mr. O's death before the opening of the inquiry. It should therefore, from that moment, have undertaken active searches to find his heirs. However, it contented itself with a certificate of posting at the town hall, which the Court of Cassation deemed insufficient. This is not the first time that the High Court has ruled on this point: in a judgment of 17 January 2019 (No. 17-26.467), it had already required real and not merely formal steps. This is therefore a confirmation, not a reversal.

However, note: the decision does not say that any notification to a deceased owner is void. It says that the administration must prove that it did what was necessary to find the heirs. If it can demonstrate, for example, that it consulted the register of vacant estates, sent letters to known addresses, or contacted the notary, the judge may validate the procedure. But in the absence of such proof, the transfer of ownership is impossible. What few people know is that this requirement of diligence also applies to other formalities of expropriation: notification of the order of vesting, offer of compensation, etc. Judges are increasingly strict about respect for the adversarial principle (the principle according to which each party must be able to discuss the elements produced by the other).

What this changes for you — concretely

If you are the owner of a property and you die, your heirs cannot be expropriated without being informed. The administration must actively search for them. Concretely, if you are an heir and you discover that an expropriation was ordered without you being contacted, you can challenge the transfer of ownership before the expropriation judge within two months of notification of the expropriation order (or, if you were not informed, within two years of the order, according to Article R. 223-1 of the Expropriation Code).

Let us take a concrete example: in Martigues, a 500 m² building plot may be worth €150,000. If the administration expropriates without having searched for the heirs, they can obtain the annulment of the procedure and, if appropriate, damages for the loss suffered. undefined, I have encountered cases where the administration simply sent a letter to the deceased's former address, without checking whether the heirs lived there. Result: the procedure was annulled after several years of proceedings, and the administration had to start from scratch, with additional costs.

If you are a tenant or co-owner, this decision concerns you indirectly: expropriation can also affect rented properties or common parts. In the event of the death of the owner, the administration must search for the heirs, failing which the rights of the occupants may be disregarded. Finally, for real estate professionals (agents, notaries, developers), this decision reminds us of the importance of verifying the situation of owners during transactions. A title of ownership may be challenged if the prior expropriation did not comply with formalities.

Four tips to avoid this type of dispute

• Keep your death certificates and wills: If you are an heir, register your status with the land publicity service (formerly the mortgage registry) so that the administration can easily identify you.
• Report any change of address: If you move, inform the town hall and the cadastre service. A notification sent to an old address may be deemed valid if you did not report the change.
• In case of expropriation, do not remain passive: If you receive a letter for a deceased relative, respond immediately indicating your status as heir. Ask the administration to provide proof of its steps.
• Consult a specialised lawyer: Expropriation is a technical procedure. A lawyer can check whether all formalities have been respected and, if necessary, challenge the transfer of ownership within the deadlines.

Further reading: related case law and developments

This decision is part of a recent jurisprudential trend that strengthens the rights of owners in the face of expropriation. For example, in a judgment of 12 October 2023 (No. 22-20.123), the Court of Cassation held that the administration must individually notify the order of vesting to each owner, even if publication in the official collection of administrative acts has been made. Similarly, the European Court of Human Rights (ECHR) has repeatedly recalled that expropriation without individual notification may violate Article 1 of Protocol No. 1 (right to respect for property).

In the future, we can expect judges to be increasingly demanding regarding proof of steps. The administration will probably have to systematically consult notarial files and succession registers before initiating an expropriation procedure. For owners and heirs, this is good news: their rights are better protected.

Frequently asked questions

What should I do if I discover that my property was expropriated without my being informed as an heir?

You can challenge the expropriation order before the expropriation judge within two months of its notification, or within two years if you were not notified. It is advisable to consult a lawyer promptly.

Is the administration obliged to search for heirs if the owner died a long time ago?

Yes, it must carry out sufficient steps, such as consulting the succession register or contacting the notary. The absence of a search may lead to the annulment of the transfer of ownership.

What remedies are available in case of irregular expropriation?

You can request the annulment of the expropriation order, and possibly damages for the loss suffered. The deadline is short, so act quickly.

expropriation-procedure">Can I sell a property that is subject to an expropriation procedure?

Yes, but the sale will be subject to informing the buyer of the ongoing procedure. In practice, expropriation may reduce the value of the property.

Does this decision also apply to expropriations for public utility purposes?

Yes, it concerns all expropriations subject to the Expropriation Code, regardless of the reason for public utility (town planning, infrastructure, etc.).

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 →