Eviction after Demolition Ordered by Criminal Court: The Interim Relief Judge Can Act

Imagine: you own a villa in Le Cannet, near Cannes. A neighbour has built an extension without planning permission that encroaches on your land, or worse, a dangerous building. The criminal court orders him to demolish it. But nothing happens. Months pass, the occupants remain. What can you do? The answer is simple: the interim relief judge (urgent applications judge) can order their eviction, even if the criminal conviction has already been handed down. This is what the Court of Cassation recalled in a judgment of 29 January 2014 (No. 13-10.803). A decision that changes the game for owners and local authorities.

But what exactly does it change? In short, the interim relief judge (who decides urgent matters) can take protective (provisional) measures or order restoration to put an end to a manifestly unlawful disturbance (an obvious violation of the law). Here, the failure to execute a demolition decision constitutes such a disturbance. Result: he can order the eviction of the occupants without waiting for the demolition to be carried out.

What few people know is that this decision was made in the context of a gift between father and daughter in Vaucluse. But its consequences are national, and particularly useful in the PACA region, where illegal constructions are frequent, especially on the French Riviera.

The Facts: A Story Like Many Others

Mr and Mrs Alain X. own a house in Avignon, Vaucluse. In 2005, Mr X.'s father gave them an adjacent plot of land. On this land, the couple built a dwelling house without planning permission. The Prefect of Vaucluse (the State representative in the department) summons them before the criminal court for illegal construction. In 2008, the court fined them and ordered the demolition of the construction under a penalty payment (financial penalty per day of delay).

But the X. couple did not demolish. They continued to live in the house. The Prefect then summons them before the interim relief judge (urgent applications judge) of the High Court to obtain their eviction. The X. couple contest: according to them, the interim relief judge has no jurisdiction because the demolition had already been ordered by the criminal judge. They invoke the principle that the criminal court binds the civil court (the authority of res judicata in criminal matters applies to civil matters).

The Court of Appeal of Nîmes (which hears cases from the region) rules against them: it orders their eviction. The X. couple appeal to the Court of Cassation. The Court of Cassation, in its judgment of 29 January 2014, dismisses their appeal. It confirms that the interim relief judge can always prescribe protective measures or restoration to put an end to a manifestly unlawful disturbance, and that the failure to execute a demolition decision constitutes such a disturbance. In other words, even if the criminal court has already ordered demolition, the civil urgent judge can evict the occupants.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 809 of the Code of Civil Procedure (now codified in Article 835 of the same Code), which allows the interim relief judge to prescribe the necessary measures to put an end to a manifestly unlawful disturbance. It recalls that this power is autonomous: it is not subject to the existence of a prior criminal conviction. In other words, the interim relief judge can act even if the criminal judge has already ruled, and even if demolition has been ordered.

The X. couple argued that the interim relief judge could not order eviction because demolition was a substantive issue already decided by the criminal court. But the Court of Cassation rejects this argument: eviction is not a demolition measure, it is a protective (provisional) measure intended to put an end to the immediate disturbance constituted by the unlawful occupation. It specifies that the interim relief judge does not exceed his powers by retaining jurisdiction to rule on the eviction request.

However, note: the interim relief judge cannot order the demolition itself, as that falls within the jurisdiction of the trial judge (the criminal judge or the civil judge ruling on the merits). But he can order eviction, which is often more effective to put pressure on the occupants.

In its decision, the Court of Cassation confirms that the manifestly unlawful disturbance is constituted by the failure to execute the demolition decision. In short, once a construction is illegal and its owner refuses to demolish it despite a conviction, the occupation of the premises itself becomes unlawful. The interim relief judge can therefore evict the occupants without waiting for the demolition.

What This Changes for You — Practically

For an owner neighbouring an illegal construction: if you suffer damage (loss of view, shade, nuisance), you can ask the interim relief judge to evict the occupants as soon as demolition has been ordered by the criminal court. No more waiting months or years for demolition to be carried out. For example, in Cannes, an owner of an apartment with a sea view could see his panorama obstructed by an illegal construction. Thanks to this judgment, he can obtain the eviction of the occupants quickly.

For a tenant occupying an illegal construction: beware, you risk eviction without notice if the owner has been ordered to demolish. Even if you have signed a lease, it is void if the construction is illegal. You can be evicted without compensation. If you are in this situation, you must consult a lawyer to negotiate a deadline or relocation compensation.

For a landlord owner who built without a permit: you take a huge risk. In addition to the criminal fine and demolition, you can be evicted from your own house. The judgment shows that eviction can be ordered in interim proceedings quickly. In practice, the interim relief judge may grant a period of a few weeks to a few months to leave, but no more.

For a local authority (municipality, prefect): this judgment confirms that eviction is an effective tool to enforce planning law. You can act in interim proceedings as soon as the criminal conviction is obtained, without waiting for the demolition to be carried out.

undefined, I have come across cases where owners in Grasse have been waiting for two years for a demolition to be executed. This judgment allowed them to obtain eviction in three months.

Four Tips to Avoid This Type of Dispute

• Before buying land or a house, check the planning permissions. Ask the seller for the planning authorisations. If the construction is recent, require the planning permit. In Le Cannet, some villas were built without permits in the 2000s. A purchase without verification can expose you to demolition and eviction.
• If you build, make a prior declaration or obtain a permit. Even for a small extension, regularisation is possible. Do not build without authorisation, especially in protected areas (coastline, mountains). The penalties are severe.
• In case of a dispute with a neighbour, first try an amicable solution. A bailiff's report and a formal notice (registered letter) may suffice. If the neighbour refuses, you can apply to the interim relief judge without waiting for a criminal conviction, on the ground of abnormal neighbourhood disturbance.
• If you are ordered to demolish, do it quickly. Not only will you avoid eviction, but you will reduce the penalty payment (financial penalty). Inaction can be costly: the penalty payment can reach €500 per day.

Further Reading: Related Case Law and Developments

This judgment is part of a consistent line of the Court of Cassation. Already in 2012 (Civ. 3rd, 7 November 2012, No. 11-22.342), it had ruled that the interim relief judge could order the demolition of an illegal construction in case of urgency. But here, it is about eviction, a rarer measure. The trend is clear: judges favour the rapid execution of criminal decisions in planning law.

Since 2014, several judgments have confirmed this solution. For example, in 2017 (Civ. 3rd, 9 March 2017, No. 15-27.139), the Court extended this power to cases where demolition was ordered by the civil judge. In other words, even if a civil court ordered demolition (for example in a co-ownership dispute), the interim relief judge can order eviction.

What this means for the future: owners of illegal constructions can no longer rely on the slowness of procedures. Eviction can be quick, within a few weeks. The only way out is to regularise the construction or to demolish voluntarily.

Key Points to Remember

• What is a manifestly unlawful disturbance? It is an obvious violation of a legal rule, such as a construction without a permit or the failure to execute a demolition decision.
• Can the interim relief judge order demolition? No, only eviction can be ordered in interim proceedings. Demolition remains within the jurisdiction of the trial judge.
• How long to obtain eviction? In interim proceedings, the judge generally rules within 1 to 3 months. Eviction itself can take place 2 to 6 months after the order, depending on bailiff's delays.
• Can I be evicted if I am a tenant in good faith? Yes, because the lease is void if the construction is illegal. You can request a grace period from the judge, but not prevent eviction.
• What should I do if I own an illegal construction? Consult a lawyer specialising in property law. You can try to regularise (if the local plan allows it) or negotiate a deadline to demolish.

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