Building Permit Not Respected: Completion of Works Does Not Protect You from Criminal Prosecution

Imagine: you are an owner in Pertuis, in Vaucluse. You obtain a building permit for a house with two dwellings. The works progress, the municipality checks, everything seems in order. Then, at the end of the construction site, you file a declaration of completion and conformity of works (DACT). No one contests. You think the matter is closed. But a neighbour reports that you have actually built three dwellings. The town hall brings criminal proceedings against you. You defend yourself: 'The works are finished, the DACT was accepted, the administration said nothing.' Grave mistake. The Court of Cassation, in a judgment of 3 December 2019 (No. 18-86.032), has just reminded an implacable rule: neither the DACT nor the absence of challenge to conformity has any effect on the public prosecution. In other words, you can be prosecuted years later, even if the works are completed and no one complained at the time.

This decision is a real wake-up call for all owners, developers and real estate professionals. Many think that filing the DACT is a kind of final 'clearance'. It is not. The criminal courts can always review compliance with the building permit, regardless of the time elapsed. So, what should be remembered from this judgment? How to avoid ending up in the same situation as this owner from Pertuis?

In this article, I will dissect this case, explain the reasoning of the judges, and above all give you practical advice to secure your construction projects. Because in real estate law, what seems to be a simple formality can turn into a judicial nightmare.

The facts: a story like many that happen every day

Mr. P., owner in Pertuis, applied for and obtained on 11 June 2013 a building permit for a single-family house comprising two dwellings. The works began, and the construction site finished. In January 2014, Mr. P. filed a declaration of completion and conformity of works (DACT). Nothing happened: the town hall did not contest, the certificate of conformity was tacitly acquired. The owner thought he was safe.

Except that, a few months later, a neighbour reported to the town hall that the house actually had three dwellings, not two as authorised. The municipality then brought criminal proceedings for breach of the town planning code. Mr. P. appeared before the Avignon criminal court. He was convicted for building without a valid permit for the third dwelling.

Mr. P. appealed. Before the Nîmes Court of Appeal, he argued that the initial permit had 'exhausted its effects' since the works were completed and the DACT had not been challenged. He maintained that the construction of the third dwelling constituted 'new works on existing', perhaps exempt from a building permit. The Court of Appeal rejected this argument. It held that the permit had not exhausted its effects, but was still in the course of execution, and that the disputed construction did not constitute new works. It upheld the conviction.

Mr. P. appealed to the Court of Cassation. He notably invoked the effect of the DACT and the absence of challenge. The Court of Cassation dismissed his appeal by the judgment of 3 December 2019, specifying that 'neither the declaration of completion and conformity of works nor the certificate attesting that the conformity of the works with the building permit has not been contested, have any effect on the public prosecution'. In other words, criminal proceedings can be initiated independently of any administrative challenge.

The reasoning of the court — dissected

The Court of Cassation relies on Articles L. 480-4 et seq. of the Town Planning Code, which criminally penalise constructions without a permit or in breach of the permit granted. Article L. 480-4 provides that carrying out works not conforming to the permit is punishable by a fine. But above all, the Court recalls a fundamental principle: the public prosecution, i.e. the possibility for the public prosecutor's office to bring criminal proceedings, is independent of the administrative procedure of conformity.

'In plain English, explain to me?' you will say. The DACT is a formality allowing the administration to check that the works comply with the permit. If it does not contest within three months, the owner obtains a tacit certificate of conformity. But this does not mean that the criminal courts are bound. The judges can always find a town planning offence, even if the administration turned a blind eye.

Be careful, however: this does not mean that the DACT is useless. It has civil and administrative effects: it closes the permit, allows letting, etc. But it does not prevent criminal prosecution.

In this case, the Court validates the reasoning of the Court of Appeal: the permit had not exhausted its effects because the works carried out (three dwellings) were not in conformity with the initial permit (two dwellings). Therefore, the permit was still in the course of execution, and the construction of the third dwelling did not constitute new works on existing, but an infringement of the initial permit. In other words, Mr. P. did not have the right to build a third dwelling without a new permit.

What few people know is that the notion of 'exhaustion of the permit' is complex. A permit is deemed exhausted when the authorised works are completed in accordance with the permit. If you build more than authorised, the permit cannot be considered exhausted for the non-conforming part. So you remain liable for the offence.

undefined, I have encountered cases where owners, after obtaining a permit for an extension, built a slightly larger area. They thought the DACT would regularise everything. Grave mistake: the DACT only covers what is compliant. The excess can be prosecuted criminally.

What this changes for you — concretely

This decision has immediate practical implications. If you are a landlord in Avignon, and you have created a division into several dwellings without a permit, know that you can be prosecuted even if the DACT was filed and not contested. The limitation period for the public prosecution is six years from the completion of the works (Article 8 of the Code of Criminal Procedure). But be careful: the limitation period can be interrupted by an investigative act. Thus, an owner who built a third dwelling in 2014 could be prosecuted until 2020, or even longer if investigative acts have taken place.

For a buyer, this is a major risk. If you buy a house that was built with a deviation from the permit, you can inherit the criminal proceedings. The seller must guarantee compliance, but if the offence is discovered after the sale, you will be in the front line. I always advise my buyer clients to check the conformity of the property with the permit before purchase. A simple tacit certificate of conformity is not enough.

For a tenant, it is more indirect: if the landlord is convicted of an offence, the dwelling may be prohibited for habitation, which can lead to termination of the lease. Better to check that the property is compliant.

Let's take a concrete example: in Pertuis, the price of a house with three dwellings is often higher than that of a house with two dwellings. If you buy a house with three dwellings without a permit for the third, you risk a criminal fine (up to €120,000, according to Article L. 480-4 of the Town Planning Code), an order to restore the premises (demolition of the third dwelling), and damages to the neighbour. The cost can exceed €200,000. Consulting a lawyer before purchase is a modest investment compared to this risk.

If you are in this situation, you must act quickly. Do not rely on the DACT to protect you. Have the conformity of your construction checked by an architect or a lawyer lawyer. If an offence is found, you can file a request for retrospective regularisation (amending building permit) if the construction complies with the Local Town Planning Plan (PLU). But be careful, regularisation does not erase the criminal offence, it can only mitigate the penalty.

Four tips to avoid this type of dispute

• Obtain a precise building permit and follow it strictly. Do not deviate from the permit, even for an additional area of a few square metres. If you want to modify the project, apply for an amending permit before starting the works.
• Do not rely on the DACT to regularise an offence. The DACT only covers compliant works. If you have built more than the permit, the DACT does not protect you criminally. Better to regularise upstream.
• Have the conformity checked by a professional before buying. Before signing a preliminary contract, ask the seller for the building permit and the DACT. Have them examined by an architect or a lawyer. If the property is non-compliant, negotiate a price reduction or require prior regularisation.
• Keep all documents relating to the permit. Keep the permit, the approved plans, the DACT, the exchanges with the town hall. In case of dispute, these documents are essential to prove your good faith.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further analysis: related case law and developments

The Court of Cassation confirms here a consistent line of case law. In a judgment of 12 February 2008 (No. 07-80.672), it had already ruled that the DACT was not an obstacle to the public prosecution. Similarly, in a judgment of 4 February 2014 (No. 12-87.407), it had specified that the absence of challenge to conformity did not validate the offence.

The trend is therefore clear: criminal judges are increasingly strict about compliance with the building permit. They consider that town planning is a major issue and that offences must be penalised, even if the administration did not react. This strictness is explained by the desire to fight illegal construction and preserve the town planning public order.

For the future, we can expect that the courts will continue in this direction. Owners must therefore be extremely vigilant. Retrospective regularisation is possible, but it is subject to strict conditions (compliance with the PLU, absence of fraud, etc.). And it does not erase the criminal fault.

What you absolutely must remember

FAQ:

Can I be prosecuted if my DACT was not contested? Yes, the DACT has no effect on the public prosecution. You can be prosecuted even if the town hall did not contest.

What is the time limit for being prosecuted? The public prosecution is time-barred after six years from the completion of the works. But investigative acts can interrupt this period.

What if I built without a permit or in excess? Consult a lawyer lawyer. You can file an amending building permit if the construction complies with the PLU. But you still risk a fine.

Can I buy a property that does not comply with the permit? It is risky. You inherit the proceedings. Require the seller to regularise or provide a guarantee.

What is the amount of the fine? Up to €120,000, plus restoration of the premises (demolition) and damages.

In summary, the DACT is not a criminal shield. The only way to be safe is to strictly comply with the building permit from the start.

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 →