Expropriation in a ZAC: Which Reference Date for Compensation?

Imagine: you are the owner of a house in Mont-de-Marsan, in an area that has just been classified as a zone d'aménagement concerté (ZAC). The town hall informs you that your land is needed for a planning project. You are going to be expropriated. But at what date will your property be valued? The answer determines the amount of your compensation. And that is the crux of the matter: depending on the date chosen, the difference can amount to tens of thousands of euros.

The question every owner in this situation asks is simple: 'How much will I be compensated?' But behind this question lies a complex legal imbroglio, which the Court of Cassation has just resolved in a judgment of 30 March 2023 (No. 22-14.163).

This decision clarifies the concept of the 'reference date' for valuing properties located in a ZAC and subject to the droit de préemption urbain (DPU). In short, it states which date must be taken into account to fix the value of the property on the day of expropriation. This clarification is of interest to owners, local authorities and developers alike.

The Facts: An Everyday Story

Mr X, owner of a plot of land in Mont-de-Marsan, sees his plot included within the perimeter of a ZAC created by a deed published in 2015. In 2020, the municipality initiates expropriation proceedings to carry out the planned developments. The plan local d'urbanisme (PLU) was modified in 2018 to incorporate this ZAC and subject the area to the droit de préemption urbain.

The disagreement concerns the reference date: the owner considers it to be the date of creation of the ZAC (2015), while the expropriating authority argues it is the date of the modification of the PLU (2018). The stakes are huge: between 2015 and 2018, property prices in the area increased by nearly 15%. The compensation could vary by several thousand euros.

The expropriation judge of the Landes département ruled in favour of the expropriating authority, setting the reference date at 2018. Mr X appealed to the Lyon Court of Appeal, which upheld the judgment. He then appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment and remitted the case to the Grenoble Court of Appeal, ruling in favour of the owner in principle, but with an important nuance.

The Reasoning of the Court — Analysed

To understand, we must delve into the statutes. Article L. 322-2 of the Code of Expropriation for Public Purposes (C. expr.) provides that, for a property located in a ZAC, the reference date is the date of publication of the deed creating the zone, provided that this date is at least one year prior to the opening of the public inquiry preceding the declaration of public utility (DUP). That is the general rule.

But attention: Article L. 213-4, a), of the Planning Code (C. urb.) provides an exception for properties subject to the droit de préemption urbain (DPU) and not included in a zone d'aménagement différé (ZAD). In this case, the reference date is the date on which the most recent of the deeds approving, revising or modifying the PLU and delimiting the area in which the property is situated became enforceable against third parties. In other words, the date of the last modification of the PLU that introduced the DPU in the area.

The Court of Cassation therefore had to reconcile these two provisions. It held that, when the property is both within a ZAC and subject to the DPU, the specific rule of the Planning Code prevails. In the present case, the PLU was modified in 2018 to incorporate the DPU, and this modification was subsequent to the creation of the ZAC. The reference date was therefore 2018, as the lower courts had found.

What few people know is that this solution was not self-evident. The Court of Cassation could have considered that the ZAC, as a more specific planning mechanism, should prevail. But it chose to give priority to the DPU, thereby aligning the reference date with that of the last modification of the PLU. This is a confirmation of previous case law (Civ. 3e, 26 May 2016, No. 15-15.638), but with a clarification: the property must be actually subject to the DPU, not merely located in an area where the DPU potentially exists.

What This Means for You — Practically

For a landlord owner in Dax, the impact is direct. If your property is in a ZAC and the municipality introduces a DPU after the creation of the ZAC, the expropriation compensation will be calculated on the basis of the value at the date of the DPU, not at the date of the ZAC. If prices have risen in the meantime, so much the better for you; if they have fallen, so much the worse. Example: a plot worth €100,000 in 2015 (creation of ZAC) and €120,000 in 2018 (modification of PLU with DPU) will be compensated at €120,000 if the reference date is 2018.

For a buyer, be vigilant: if you purchase a property in a ZAC with DPU, check the date of the last modification of the PLU. It will determine the compensation in the event of future expropriation.

For a tenant, the impact is indirect: the compensation paid to the owner may influence his ability to rehouse you or to pay you an eviction indemnity.

If you are in this situation, you must verify the date of the last modification of the PLU that introduced the DPU on your plot. If it is later than the creation of the ZAC, it will be the governing date. undefined, I have seen cases where owners lost thousands of euros because they did not challenge the date adopted by the expropriating authority.

Four Tips to Avoid This Type of Dispute

• Keep all planning documents: orders creating ZACs, resolutions approving the PLU, modifications of the PLU. These dates are crucial.
• Check whether your property is subject to the DPU: consult your municipality's PLU or request a planning certificate. If the DPU was introduced after the ZAC, the reference date will be that of the DPU.
• Have your property valued by an expert as soon as you receive an expropriation notice. The valuation must take into account the correct reference date.
• Challenge the reference date promptly if you believe it is incorrect. The time limit for appeal is short (2 months from notification of the expropriation order).

Further Reading: Related Case Law and Developments

This judgment is part of a line of decisions clarifying the interactions between different planning regimes. In a judgment of 26 May 2016 (No. 15-15.638), the Court of Cassation had already affirmed that, for properties subject to the DPU, the reference date was that of the last modification of the PLU, even if the property was located in a ZAC. The 2023 decision confirms this principle and applies it to a concrete case.

However, note: the question remains open for properties located in a ZAC but not subject to the DPU (for example, in a zone d'aménagement différé). In that case, the reference date remains that of the creation of the ZAC. The trend of the courts is therefore towards a strict, case-by-case application of the statutes.

For the future, we can expect local authorities to be more attentive to the chronology of planning acts, in order to avoid costly litigation. Owners, for their part, must be vigilant and seek assistance from the outset of the procedure.

Key Points to Remember

FAQ:

• What is the reference date? It is the date on which the property is valued to fix the expropriation compensation. It is determined by complex rules, notably Articles L. 322-2 of the C. expr. and L. 213-4 of the C. urb.
• Which date applies if my property is in a ZAC with DPU? The date of the last modification of the PLU that introduced the DPU, if it is later than the creation of the ZAC.
• Can I challenge the reference date? Yes, before the expropriation judge, within two months of notification of the expropriation order. It is advisable to instruct a lawyer.
• What is the risk if the date is incorrectly fixed? Under-valuation or over-valuation of the compensation, potentially amounting to tens of thousands of euros.
• What should I do if in doubt? Consult a lawyer specialising in property law. An initial analysis can save you from significant financial loss.

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