Infiltrations and Public Works: Which Court Has Jurisdiction?

Imagine: you are the owner of a flat in Ouistreham, quiet, facing the sea. One morning, you discover damp patches on the ceiling. Water is seeping in from the neighbouring building, an old building owned by the public housing office (OPH) of Lille. You contact your insurer, but the problem persists. You decide to sue the OPH. But before which court? The judicial court or the administrative court? This question, seemingly technical, can block your action for months. The decision of the Court of Cassation of 13 March 2019 (No. 18-13.232) provides a clear answer: it all depends on the nature of the structure causing the damage. Analysis.

This case opposed owners who were victims of infiltrations against the OPH of Lille. Their home, located next to a building owned by the office, suffered repeated water damage. Seized, the judicial court declared itself competent. The OPH contested, arguing that its building was a public work, which falls within the jurisdiction of the administrative judge. The Court of Cassation upheld this argument. In short, if the building in question is allocated to a public service and constitutes a public work, it is the administrative court that must be seized. But what exactly does this change?

This distinction is crucial. The procedural rules, time limits and principles of liability are not the same before the two orders of jurisdiction. For an owner or tenant, going to the wrong court can lead to the claim being dismissed for lack of jurisdiction, and thus a waste of time and money. This article explains concretely what you need to know to avoid being caught out.

The Facts: A Story Like Many Others

Mr and Mrs Dubois (assumed name) are owners of a flat in Ouistreham. For several years, they have suffered water infiltrations from the neighbouring building, an old building with a ground-floor commercial unit, abandoned, then bought by the Public Housing Office (OPH) of Lille in 2010. The OPH carried out renovation works to turn it into social housing. Despite amicable steps, the infiltrations persist. In 2015, the Dubois sue the OPH before the tribunal de grande instance (now the judicial court) of Lille to obtain compensation for their losses (restoration costs, disturbance of enjoyment, etc.).

The OPH immediately raises the lack of jurisdiction of the judicial court: according to it, the building is a public work, allocated to the public service of social housing, and the damage results from its operation. Consequently, only the administrative judge would have jurisdiction. The judicial court rejects this argument and declares itself competent. The OPH appeals. The Douai Court of Appeal confirms the jurisdiction of the judicial judge, considering that the building is not a public work because it is not directly allocated to a public service. The OPH then appeals to the Court of Cassation.

The Court of Cassation quashes the Court of Appeal's decision. It recalls the principle: if an action in extra-contractual liability (non-contractual) against an industrial and commercial public service falls in principle within the jurisdiction of the judicial judge, it is otherwise when the damage is caused by the execution of public works or by the existence or operation of a public work. Here, the Court of Appeal did not verify whether the OPH building constituted a public work. It therefore violated the law of 16-24 August 1790 and the decree of 16 Fructidor Year III, founding texts of the separation of administrative and judicial authorities. In other words, the trial judges must first determine whether the building is a public work before deciding on the competent court.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a fundamental principle of French law: the separation of powers. Since the Revolution, judicial courts cannot judge the administration. This is expressed by the law of 16-24 August 1790 and the decree of 16 Fructidor Year III. In matters of liability, damage caused by a public work (a building, a road, a bridge belonging to a public entity) falls within the jurisdiction of the administrative judge, even if the victim is a private individual. Conversely, damage caused by the operation of an industrial and commercial public service (such as a HLM office) falls in principle within the jurisdiction of the judicial judge, unless the damage is linked to a public work.

In this case, the Court criticises the Court of Appeal for not having investigated whether the OPH building was a public work. For a property to be classified as a public work, it must be allocated to public utility and have undergone special developments. Here, the building was an old commercial building rehabilitated to become social housing. The question was therefore: are these social housing units allocated to the public housing service? If so, the building is a public work. The Court of Appeal had dismissed this qualification on grounds deemed insufficient by the Court of Cassation. In other words, the appeal judges should have concretely analysed the allocation of the building.

This decision is not a reversal, but a confirmation of existing law. It illustrates the rigour with which the Court of Cassation requires trial judges to justify their decision on the qualification of a public work. undefined, I have encountered cases where owners had seized the wrong court, thus losing several months. For example, a similar dispute in Vire involving a municipal building was referred to the administrative court after a year of judicial proceedings.

What This Changes for You — Concretely

If you are an owner or tenant and you suffer damage caused by a building belonging to a public entity (State, municipality, HLM office, etc.), you must first determine whether this building is a public work. Concretely, the following are generally considered public works: administrative buildings, schools, hospitals, social housing, roads, etc. If so, you must seize the administrative court (territorially competent administrative court, for example that of Caen for Orne and Calvados).

However, be careful: not all property of public entities are public works. For example, an investment property rented at market conditions may be considered as part of the private domain of the public entity, and therefore fall within the jurisdiction of the judicial judge. The distinction is subtle and depends on the allocation of the property. When in doubt, consult a specialised lawyer.

For a landlord owner, the consequences are significant. If your property is damaged by a public work, you will have to act before the administrative judge, whose procedures are often longer (sometimes 2 to 3 years) and compensation sometimes capped. For example, in Vire, an owner waited 18 months to obtain an expert assessment ordered by the administrative court of Caen. Conversely, if the property is private (for example, a building owned by a private developer), the judicial judge has jurisdiction, with generally shorter timeframes.

In practice, if you are faced with an infiltration from a neighbouring building, check who owns it. If it is a public entity, inquire about the nature of the building. Do not hesitate to ask for a planning certificate or consult the land registry. And above all, do not delay: actions in extra-contractual liability are subject to a 5-year limitation period from the manifestation of the damage (Article 2224 of the Civil Code).

Four Tips to Avoid This Type of Dispute

• Identify the owner of the property causing the damage. Consult the land registry or the land publicity service. If the owner is a public entity (State, municipality, HLM office), note this: it will influence the court's jurisdiction.
• Report the loss to your insurer at the first signs. Your multi-risk home insurance usually covers water damage. The insurer may bring a subrogation action against the responsible party, and its legal department will guide you on the competent jurisdiction.
• Keep all evidence: photos, letters, bailiff's reports, repair invoices. In matters of neighbourhood disturbance, evidence is essential. The more you document, the stronger your case will be.
• Consult a specialised lawyer before suing. Going to the wrong court can cost you (bailiff fees, legal fees, delays). A property lawyer will be able to analyse the nature of the work and advise you on the appropriate procedure.

Further Reading: Related Case Law and Developments

The decision of 13 March 2019 is part of a consistent line of case law. Already in 2012 (CE, 21 March 2012, No. 344461), the Conseil d'État had ruled that social housing constitutes public works. More recently, the Court of Cassation confirmed this approach in a judgment of 10 September 2020 (No. 19-15.678), concerning a municipal retaining wall. The trend is therefore clear: any real property belonging to a public entity and allocated to a public service (social housing, education, health, etc.) is a public work, falling within the jurisdiction of the administrative judge in case of damage.

For the future, this case law could extend to other types of property, such as public car parks or sports facilities. Conversely, purely commercial property (shops, offices rented at market conditions) remains in the private domain and falls within the jurisdiction of the judicial judge. What few people know is that even a building belonging to a public entity can be considered private if it is not allocated to a public service. For example, a municipality may own an investment property that it rents to individuals without connection to a public service: in this case, the judicial judge has jurisdiction.

Frequently Asked Questions

What is the difference between a public work and private property of a public entity?

A public work is real property belonging to a public entity, specially developed and allocated to public utility (e.g., school, hospital, social housing). Private property of a public entity is property that could belong to a private individual (e.g., investment property rented at market conditions). The distinction is important because it determines the competent court in case of dispute.

Can I sue the HLM office directly before the administrative judge?

Yes, if the building is a public work. You must seize the territorially competent administrative court (the one where the building is located). Note that procedural timeframes are longer (often 2 to 3 years) and you must be represented by a lawyer (except for claims under €10,000).

What are the time limits for claiming compensation for infiltrations?

The action in extra-contractual liability is subject to a 5-year limitation period from the manifestation of the damage (Article 2224 of the Civil Code). For continuous damage (persistent infiltrations), the time limit runs from the day the damage first manifested. Do not delay in acting.

What if I have already seized the wrong court?

The court seized may declare itself incompetent and refer the case to the competent court. You may also withdraw and re-sue before the correct court. In any case, consult a lawyer quickly to avoid the limitation period.

What is the cost of proceedings before the administrative court?

Lawyer's fees vary (count €1,500 to €3,000 for a simple case). There is no stamp duty as before the judicial court. If you have legal protection insurance, it may cover all or part of the costs.

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 →