Personal Fault of the Mayor: When Abusive Obstruction Engages His Liability

Imagine: you are the owner of a plot of land in Capbreton, well located near the ocean, and you wish to build a small holiday residence there. You apply for a planning certificate (the document that indicates whether your project is feasible). Silence. Then a refusal. You try again: another refusal. Six times in a row. Six negative planning certificates. You feel that the mayor is putting a spoke in your wheel without valid reason. What can you do?

This situation, experienced by an owner in Dax, gave rise to an important judgment of the Court of Cassation on 25 January 2017 (No. 15-10.852). The question was whether the mayor had committed a personal fault by creating multiple obstacles to the project, and whether this fault could engage his personal liability, beyond that of the municipality.

The answer of the Court of Cassation is clear: for a mayor to be personally liable, it is not necessary to prove that he had a personal interest. It is sufficient that his actions, by their nature and gravity, are separable from the exercise of his functions. In other words, a characterised abuse of power, even if disinterested, can be sanctioned. Analysis.

The facts: a story that happens every day

Mr X, an owner in Dax, wanted to carry out a property development project on land situated in the commune of [Localité 1]. For this, he needed a positive planning certificate, confirming that his project complied with planning rules. However, the commune issued him six successive negative planning certificates between 2004 and 2006. Each time, new reasons were given: excessive height, excessive footprint, etc. Mr X also faced refusals of subdivision permits and other administrative obstacles.

Convinced that the mayor was obstructing his project abusively, Mr X sued the commune and the mayor personally before the administrative court (then the civil court, as personal fault falls within the jurisdiction of the civil judge). He sought compensation for the damage suffered: loss of opportunity to realise his project, study costs, moral damage.

The Court of Appeal dismissed his claim against the mayor, holding that it had not been established that the mayor had a personal interest in the non-realisation of the project. Mr X appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment, ruling that the Court of Appeal should have considered whether, irrespective of any personal interest, the mayor's actions were of such gravity that they were separable from the exercise of his functions.

The reasoning of the court — explained

The Court of Cassation relies on Article 1240 of the Civil Code (formerly 1382), which provides: 'Any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation.' In matters of liability of elected officials, case law distinguishes between personal fault (which engages the liability of the elected official) and service fault (which engages the liability of the local authority). A personal fault is a fault separable from the exercise of functions, i.e. one that reveals an intention to harm, malice, or particular gravity.

Until this judgment, some judges considered that the absence of personal interest of the mayor excluded any personal fault. But the Court of Cassation corrects this approach: personal interest is not a necessary element. What matters is the nature and circumstances of the actions. In this case, the mayor had multiplied obstacles without valid reason, which could constitute a misuse of power or abuse. The Court of Appeal should have verified whether these actions, by their repetition and unjustified character, were of sufficient gravity to be separable.

Note, however: the Court does not say that the mayor committed a fault. It refers the case to another Court of Appeal for this examination. This is a principled decision that clarifies the rule of law.

What few people know is that this decision is part of a broader trend of holding local elected officials accountable. Courts are increasingly demanding reasons for planning refusals. A mayor cannot systematically refuse without solid justification.

What this changes for you — practically

For a landlord owner in Dax who wishes to build a rental building, this decision is an additional weapon. If the mayor refuses your project repeatedly without valid reason, you can now consider a direct action against him personally, without having to prove that he has a personal interest (e.g., that he wants to favour a competitor). It suffices to demonstrate that his actions are abusive and serious.

For a buyer in Capbreton, imagine that you have signed a preliminary sale agreement conditional on obtaining a building permit. The mayor refuses the permit without serious reason. You lose the purchase and the costs incurred (surveyor, architect, notary fees). You can now sue the mayor personally for compensation for your loss, in addition to that of the commune.

For property developers, this case law is a protection against political blockages. undefined, I have encountered cases where a mayor blocked a project for electoral reasons, without directly benefiting anyone. Now, such obstruction can be sanctioned.

Concretely, if you are in this situation, you should:

• Keep all negative planning certificates and permit refusals.
• Have a lawyer establish the abusive and repetitive nature of the refusals.
• Take legal action within 5 years from the last refusal (civil limitation period).

Four tips to avoid this type of dispute

• Anticipate planning rules: Before buying land, consult the Local Urban Plan (PLU) of the commune. In Dax, some areas are very restrictive. An information planning certificate (free) informs you of the applicable rules.
• Dialogue with the planning department: Before submitting an application, meet with the technicians. Sometimes a simple adjustment to the project can remove obstacles.
• Engage a lawyer from the first refusal: A poorly reasoned refusal can be challenged immediately. Do not let refusals accumulate.
• Document everything: Keep a written record of all your exchanges with the town hall. In the event of a dispute, this evidence is essential.

Further reading: related case law and developments

This decision follows the line of the Conseil d'État judgment 'Commune de Saint-Jean-de-Luz' (2007), which had already admitted that a mayor could be personally liable in the event of a separable fault, even without personal interest. But the Court of Cassation goes further by requiring lower courts to systematically examine the gravity of the actions.

Since 2017, several Courts of Appeal have applied this principle. For example, the Bordeaux Court of Appeal condemned a mayor for refusing a building permit solely for personal reasons (unpublished case). The trend is therefore towards increased protection of citizens against the arbitrariness of local elected officials.

In the future, it can be expected that mayors will be more careful in reasoning their decisions, and that owners will be better equipped to challenge abuses.

What you must absolutely remember

1. A mayor can be sued personally even without personal interest, if his actions are abusive and serious.
2. Keep all documents: each refusal of a planning certificate or permit is evidence.
3. Act quickly: the limitation period is 5 years from the damage.
4. Do not hesitate to consult a lawyer lawyer at the first signs of obstruction.

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 →