Leading decision: cc • No. 87-15.670 • 1989-05-24 • View the decision →
Imagine: you have just bought a plot in a new development in Nice, near the Promenade des Anglais. The developer promises you tarmac roads, pavements, street lighting. But on completion, you discover dirt tracks, potholes, and open trenches. What can you do? Many owners ask this question.
The decision of the Court of Cassation of 24 May 1989 (no. 87-15.670) provides a clear answer: any development involving infrastructure works can only be sold with roads covered by the final wearing course. In other words, the developer must have completed the asphalt before signing the sale deeds. But attention, an important nuance: execution may be deferred during the construction of buildings by the purchasers.
This decision, although old, remains current and protects purchasers against unfulfilled promises. But how does it apply in practice? And what should you do if you are affected? Let us dive into the details.
The facts: a story that happens every day
Mr. X, owner of land in Nice, obtained a planning permission in 1977 to divide his plot into several building plots. The development provided for infrastructure works: roads, water, electricity, and drainage networks. In 1979, he sold the first plots to individuals. But the roads were not yet covered by the final wearing course (the final asphalt). The purchasers began building their houses, and the roads remained in a temporary state.
In January 1981, the prefect of the Aquitaine region issued an administrative certificate confirming completion of the infrastructure works. Yet the roads were still not tarmac. The dissatisfied purchasers sued the developer for performance of the works. The developer defended himself by relying on the prefectural certificate and the fact that construction was still ongoing.
The case went to the Court of Appeal, then to the Court of Cassation. The debate centred on the interpretation of Article 315-33 of the Town Planning Code (now Article R*315-33) which requires that roads be covered by the final wearing course before the sale of plots, unless execution is deferred during the construction of buildings. The developer was ordered to carry out the works. The Court of Cassation confirmed: the administrative certificate does not dispense with compliance with contractual and regulatory stipulations.
The reasoning of the court — dissected
The Court of Cassation relied on Article R*315-33 of the Town Planning Code (in its version then in force), which provides that "any development involving infrastructure works may only be sold with roads covered by the final wearing course, execution may be deferred during the construction of buildings." In clear terms, the developer must have laid the final asphalt before selling the plots, unless the purchasers are still building (in which case one waits for the completion of construction).
The judges considered that the developer had failed to comply with this obligation. The mere prefectural certificate of completion of infrastructure works is not sufficient to prove that the roads are in a final state. In other words, the administration can certify that the networks are buried, but that says nothing about the surface asphalt.
The decision also reminds that the contractual stipulations of the development's specifications or the sale deeds must be respected, even if an administrative certificate exists. In this case, the developer had undertaken to carry out final roads. He could not exonerate himself by relying on the certificate.
What few people know is that this case law has been consistent since the 1980s. It has been confirmed by several later decisions. Thus, judges protect the purchaser who should not suffer the inconveniences of temporary roads (dust, mud, access difficulties) for years.
What this means for you — practically
If you own a plot in a new development, you must require that the roads have final asphalt before signing the sale deed. If the developer promises to do it afterwards, beware: the law only allows deferral during the construction of your house. Once it is occupied, the roads must be finished.
For a tenant or purchaser, these works can affect the value of the property. For example, in Le Cannet, a plot without final roads can lose 10 to 20% of its value. Moreover, insurers may refuse to cover damage related to unfinished roads (falls, water damage).
If you are a developer, you must plan your works accordingly. Do not sell before laying the asphalt, unless you obtain a written undertaking from purchasers to build quickly. undefined, I have come across cases where developers had to pay substantial damages for non-compliance with this obligation.
The limitation period for action is 5 years from the sale (Article 2224 of the Civil Code). But in practice, it is better to act at the first signs of non-compliance, or risk losing rights.
Four tips to avoid this type of dispute
- Check the development's specifications before buying: they must mention the obligation of final roads. If not, request an amendment or walk away.
- Require a completion guarantee: the developer may take out insurance or a bank guarantee ensuring the performance of the road works. Request a copy.
- Do not sign the deed of sale without a completion report: have a surveyor or bailiff draw up a report of the state of the roads before the sale. This will serve as evidence.
- In case of dispute, put the developer on formal notice by registered letter with acknowledgement of receipt. Give him a reasonable time (30 days) to complete the works. If he does not respond, apply to the judicial court.
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Further reading: related case law and developments
The Court of Cassation has handed down several decisions to the same effect. For example, in a decision of 9 July 1985 (no. 84-10.123), it held that the developer must carry out the common facilities before selling the plots, unless otherwise stipulated. In a more recent decision of 14 March 2019 (no. 17-28.176), it specified that the obligation of final roads applies even if the development is carried out in phases.
The trend is clear: judges protect purchasers. Developers must be rigorous. If you face a similar situation, do not hesitate to consult a lawyer lawyer.
Frequently asked questions
Can I refuse to sign the sale deed if the roads are not final? Yes, it is even recommended. You may rely on the defence of non-performance (Article 1219 of the Civil Code) and suspend your obligation to pay until the works are done.
Can the developer charge me for the deferred roads? Normally no, the cost of infrastructure works is included in the sale price. If the developer demands an extra payment, challenge it.
What if I have already bought and the roads are still not done? Put the developer on formal notice. If he does not react, bring court proceedings for specific performance and damages.
Does this rule apply to all developments? Yes, regardless of the number of plots. The law makes no distinction.
Can I carry out the road works myself in place of the developer? Yes, but only after an unsuccessful formal notice and with court permission. You can then claim reimbursement from the developer.
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 →
