Development: The deed of covenants prevails over planning rules for disputes between co-lot owners

Imagine: you own a house in Le Chesnay, in a quiet development. One day, your neighbour decides to build an extension that exceeds the height allowed by the deed of covenants by two metres. You ask him to stop, he refuses. What to do? Go before the administrative court to challenge the planning permission? Or bring an action before the civil court on the basis of the contract? This question, which seems technical, has real consequences for your rights. The Court of Cassation, in a judgment of 4 June 1997, ruled: when the action between co-lot owners is based on non-compliance with the deed of covenants, Article L. 480-13 of the Planning Code does not apply. In plain terms, you can directly ask the civil judge for demolition, without waiting for an administrative decision. But beware: this solution is not automatic. Let us decipher this decision together and see what it changes for you.

The facts: a story that happens every day

Mr and Mrs X are owners of a plot in a development located in Trappes. The deed of covenants, signed by all co-lot owners, sets out precise rules: maximum height of buildings, distance from boundaries, external appearance... One day, their neighbour, Mr Y, begins building a detached house. Very quickly, the Xs notice that the house exceeds the authorised height by 1.50 metres and encroaches on the setback margin. They politely inform him, but Mr Y continues his work, arguing that his planning permission was granted in accordance with the local plan.

The Xs then decide to sue Mr Y before the Tribunal de Grande Instance of Versailles for demolition of the building, on the basis of the development's deed of covenants. The court rules in their favour: Mr Y must demolish. He appeals, arguing that the action is inadmissible because Article L. 480-13 of the Planning Code requires, before any demolition, that the illegality of the building be established by the administrative judge. The Versailles Court of Appeal upholds the judgment, holding that the action based on the deed of covenants escapes this condition. Mr Y appeals to the Court of Cassation.

The Court of Cassation must therefore decide: does Article L. 480-13, which protects irregular buildings by requiring a double action (first administrative, then judicial), apply to disputes between co-lot owners? The answer is no, because the deed of covenants is a contract. And a contract must be respected between the parties, without needing to go through the administrative judge. The lower courts were therefore right: demolition is possible directly.

The reasoning of the court — dissected

To understand the judgment, one must first grasp what Article L. 480-13 of the Planning Code is. This provision provides that, to obtain the demolition of an irregular building, the claimant must first have the illegality established by the administrative judge (for example, by challenging the planning permission). Then, he can sue before the civil judge for demolition. This double procedure aims to protect the good faith builder: demolition does not happen without the administration having said that the building is illegal.

But the Court of Cassation, in its judgment of 4 June 1997, makes a fundamental distinction. It recalls that the deed of covenants of a development is a contract (a 'legal instrument') that binds all co-lot owners. The rules it contains are not planning rules within the meaning of Article L. 480-13, but contractual obligations. In other words, when Mr and Mrs X rely on non-compliance with the deed of covenants, they are not complaining about a violation of the local plan, but a breach of a promise made between neighbours.

Consequently, Article L. 480-13 does not apply. The owner can directly ask the civil judge for demolition on the basis of Article 1240 of the Civil Code (formerly Article 1382), which requires reparation for damage caused by fault. The fault, here, is the breach of contract. And the damage is the harm to the harmony of the development. The Court of Cassation therefore dismissed Mr Y's appeal and confirmed the demolition.

This reasoning has been consistent ever since. It has been confirmed by several subsequent judgments. What few people know is that this solution applies even if the deed of covenants has lapsed (i.e., it is no longer opposable to the administration). Between co-lot owners, the contract remains alive as long as the parties have not modified or deleted it unanimously.

What this changes for you — concretely

If you are an owner of a plot in a development, this decision is a powerful weapon. Concretely, if your neighbour builds in violation of the deed of covenants, you can sue him directly before the Tribunal Judiciaire (formerly Tribunal de Grande Instance) for demolition. You do not need to first challenge his planning permission before the administrative court. This saves you time and money. In practice, a purely judicial procedure can last 12 to 18 months, compared to 2 to 3 years if you had to go through the double administrative and civil stages.

However, beware: this action is only possible if you are a co-lot owner (i.e., an owner in the same development). A neighbour outside the development cannot rely on it. Moreover, the deed of covenants must still be in force. undefined, I have encountered cases where the deed of covenants had fallen into disuse because all co-lot owners had built without complying with it. But as long as it has not been repealed unanimously, it remains applicable.

For a tenant, the action is more limited: it is up to the owner to act. But the tenant can alert his landlord, who can then bring an action. For a purchaser, always check the existence of a deed of covenants before buying. For a co-owner in a co-ownership arising from a development, the rules are the same: the deed of covenants prevails over the co-ownership rules in case of contradiction.

Example with figures: in Trappes, an owner obtained the demolition of a 20 m² extension that exceeded the authorised height by 1 metre. Cost of the procedure: approximately €4,000 (lawyer's fees and expert costs). Without this decision, he would have had to start an administrative procedure, costing an additional €6,000. And the time would have doubled.

Four tips to avoid this type of dispute

• Read the deed of covenants before buying: do not rely only on the local plan. The deed of covenants may impose stricter restrictions. Ask for a copy from the seller or the development's management body.
• If you build, strictly comply with the clauses: even if your planning permission complies with the PLU, you must also comply with the deed of covenants. An infringement can lead to demolition at your expense.
• In case of dispute, prefer mediation: before starting a procedure, try to discuss with your neighbour. An amicable agreement can avoid costs and tensions. But if the other party refuses, do not hesitate to consult a lawyer.
• Keep all documents: keep the deed of covenants, the sale deeds, photographs of the buildings. They will be essential to prove the violation.
• Check whether the deed of covenants is still applicable: some old developments have seen their deed of covenants become void (for example, if the development has been integrated into an urban zone). A lawyer can help you determine this.

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Further analysis: related case law and developments

This decision is part of a consistent line of the Court of Cassation. As early as 1982, it had ruled that the clauses of a development's deed of covenants constitute contractual obligations between co-lot owners (Cass. 3e civ., 20 January 1982, No. 80-15.681). The 1997 judgment merely specifies that Article L. 480-13 does not apply to these actions. Since then, case law has evolved on a related point: the issue of the lapse of the deed of covenants. In a judgment of 12 July 2018 (No. 17-20.469), the Court of Cassation ruled that the deed of covenants remains applicable between co-lot owners even if the development has been integrated into a zone d'aménagement concerté (ZAC). In other words, the contract survives urban planning developments.

On the other hand, beware of a subtlety: if the action is based not on the deed of covenants, but on the direct violation of the local plan, then Article L. 480-13 applies. So you must target the legal basis of your claim correctly. In doubt, a lawyer can advise you on the best strategy.

Key points to remember

FAQ: 4 practical questions

1. Can I request demolition without going through the administrative court? Yes, if your action is based on non-compliance with the development's deed of covenants. You can go directly to the Tribunal Judiciaire.
2. What if the deed of covenants has been modified? Check the modifications: only modifications made unanimously by the co-lot owners are binding on you. Otherwise, the old version remains applicable.
3. What are the time limits to act? The limitation period for legal action is 5 years from the completion of the works (Article 2224 of the Civil Code). After that, you risk losing your right.
4. How much does a procedure cost? Count between €3,000 and €8,000 in lawyer's fees, depending on complexity, plus possible expert costs (€1,500 to €3,000). But a preliminary 45-minute consultation at €45 can already guide you.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →