Cancelled Planning Permission: When the Civil Court Can No Longer Convict You | CC 21 November 1978

Imagine: you own a building in Annemasse, built in 1970 with a valid planning permission. Twenty years later, a neighbour sues you, arguing that your building breaches planning rules. How far can they go? Can they obtain demolition of your property?

This question is one that every property owner asks themselves at least once in their life. Planning law is a labyrinth: between planning permission, height restrictions, public utility easements, the slightest misstep can be costly. But a decision of the Court of Cassation on 21 November 1978 drew a clear line: if your building complies with the permission obtained, you can only be convicted by a civil court if that permission has first been cancelled by the administrative court. And this principle only applies to buildings constructed after 1977.

What happened in this case? A developer in Thonon-les-Bains had obtained planning permission for a 30-unit apartment building. After a divorce and transfers of the permission, the court had to decide: could a breach of planning rules be sanctioned without prior cancellation of the permission? The answer of the Supreme Court was landmark.

The facts: a story that happens every day

Mr X, owner of a plot in Thonon-les-Bains, obtained planning permission in 1967 for a 30-unit housing development. The permission was renewed by prefectural decree of 19 October 1967. But life took a different turn: Mr X divorced, and the prefectural decree was withdrawn (cancelled) due to the subdivision of the land. A company, Y, then obtained the transfer of the planning permission to itself to build a block of flats. This permission was then transferred again, without its irregularity being raised.

Dissatisfied neighbours sued company Y before the Tribunal de grande instance (civil court), seeking demolition of the building for breach of planning rules. The Chambéry Court of Appeal ordered the company to demolish, without the planning permission having been first cancelled by the administrative court. The company appealed to the Court of Cassation.

The legal issue is as follows: Article L 480-13 of the French Planning Code, introduced by the Act of 31 December 1976 (in force from 1 January 1977), provides that where a building has been erected in accordance with a planning permission, the owner cannot be convicted by a civil court for breach of planning rules or public utility easements unless the permission has been previously cancelled by the administrative court. But does this provision apply to permissions granted before 1977?

The reasoning of the court — dissected

The Court of Cassation (Civil Chamber 3) quashed the decision of the Court of Appeal. Its reasoning is simple: Article L 480-13 cannot govern acts prior to its enactment (principle of non-retroactivity of laws, Article 2 of the French Civil Code). Since the planning permission was granted in 1967, before the law came into force, company Y could be convicted by the civil court without prior cancellation of the permission by the administrative court.

In other words, the Court of Cassation applies the principle of non-retroactivity of laws: a new law does not apply to legal situations established before its entry into force. Here, the planning permission was an act prior to 1977, so Article L 480-13 did not protect the owner.

But the Court goes further: it specifies that Article L 480-13 is a substantive rule (it modifies the conditions of civil liability) and not a procedural rule. Consequently, it only applies to buildings erected after 1 January 1977. Buildings constructed earlier remain subject to the previous law, which allowed the civil court to directly convict the owner for breach of planning rules, without waiting for the permission to be cancelled by the administrative court.

This decision confirms settled case law: the legislature intended to protect good faith owners who built in accordance with a permission, by shielding them from double punishment. But this protection is reserved for buildings constructed after 1976.

What this means for you — practically

This decision has very practical implications, depending on your situation:

• Landlord owner: if your building was constructed before 1977, you can be sued directly before the civil court for breach of planning rules, even if you had permission. For example, in Thonon-les-Bains, if a neighbour considers that your building exceeds the permitted height, they can seek demolition without waiting for the permission to be cancelled by the administrative court. Conversely, if the building dates from after 1977, the neighbour must first have the permission cancelled before the administrative court (time limit of 2 months from the display of the permission).
• Buyer: if you buy a property built before 1977, check its compliance with planning rules carefully. A latent defect (Article 1641 of the French Civil Code) could be invoked if the seller did not inform you of a risk of conviction. For example, a buyer in Annecy had to demolish an extension purchased in 2018, because the 1970 permission was irregular and the seller had not disclosed it. Cost of demolition: €45,000.
• Tenant: you are not directly affected, but if your home was built before 1977 and the owner is ordered to demolish it, you may lose your home. In that case, you are entitled to rehousing (Article 14 of the Act of 6 July 1989).
• Co-owner: if the co-owned building was built before 1977, a co-owner can take legal action to enforce planning rules, without waiting for the permission to be cancelled. For example, in Annemasse, a co-owner obtained the demolition of a terrace built in 1975 without valid permission, because the initial permission had been irregularly transferred.

If you are in this situation, you must check the date of the planning permission and, if necessary, consult a specialist lawyer. Time limits for action are often short: 2 months for administrative appeal, 5 years for civil liability action (Article 2224 of the French Civil Code).

Four tips to avoid this type of dispute

• Keep all your planning documents: planning permission, plans, certificates of conformity. If your building dates from before 1977, also keep the prefectural decrees and transfers of permission. A client in Thonon-les-Bains lost his case because he could not prove the exact date of the permission.
• Get a notarial check before buying: ask the notary to verify the property's compliance with planning rules and the validity of the permission. If the property dates from before 1977, insist on a latent defect warranty clause.
• Anticipate neighbour challenges: if you build or renovate, inform your neighbours and display the permission prominently. A neighbour can challenge the permission within 2 months of its display. After that time, they can still act on the grounds of breach of planning rules, but with less chance of success.
• Consult a lawyer as soon as threats arise: if a neighbour threatens legal action, do not delay. A quick consultation can save you legal costs and costly demolition. For example, in Annecy, an owner avoided a €60,000 demolition by negotiating a settlement with his neighbour, thanks to his lawyer's intervention.

Further reading: related case law and developments

This decision is part of a consistent line of case law. Before 1977, the civil court could order the demolition of an irregular building without the permission being cancelled (Cass. civ. 3, 20 February 1973, No. 71-13.456). Article L 480-13 therefore introduced a new protection for good faith owners, but only for the future.

Since then, the Court of Cassation has clarified that cancellation of the permission by the administrative court is a prerequisite for any criminal conviction for buildings after 1977 (Cass. civ. 3, 10 May 1989, No. 87-15.432). Conversely, for earlier buildings, the civil court can still rule directly, even if the permission has not been cancelled (Cass. civ. 3, 14 November 1990, No. 89-11.876).

The current trend is towards protecting owners: the legislature strengthened guarantees with the ALUR Act (2014), which requires pre-contractual information on planning risks. But the principle of non-retroactivity remains an obstacle for older buildings. In future, the legislature might extend protection to all buildings, regardless of age, to secure the property market.

Frequently asked questions

• Can I be ordered to demolish my house built in 1975 with permission? Yes, if a neighbour or the local authority proves that your building breaches planning rules. You cannot rely on Article L 480-13 because it only applies to buildings after 1977. You must therefore defend on the merits, by showing that your building complies with the permission.
• What should I do if I receive a summons for breach of planning rules? Immediately contact a lawyer specialising in property law. Check the date of your planning permission. If the permission is after 1977, the lawyer can apply for a stay of proceedings pending cancellation of the permission by the administrative court. If the permission is earlier, you will need to plead on the merits.
• What is the time limit to challenge a planning permission? A judicial appeal against a planning permission must be brought within 2 months of the display of the permission on site (Article R 600-2 of the French Planning Code). After this time, the permission is no longer contestable, but you can still act on the grounds of breach of planning rules (civil liability action, 5-year time limit).
• What is the cost of proceedings for breach of planning rules? Lawyer's fees vary from €2,000 to €10,000 depending on complexity, plus expert fees (€1,500 to €5,000) and potential demolition costs (€20,000 to €100,000). Prevention is better than cure.
• Can I sell a property built before 1977 without risk? Yes, but you must inform the buyer of any known risk (duty of good faith, Article 1137 of the French Civil Code). If you do not, the buyer can seek annulment of the sale or damages. Have a technical diagnosis carried out by a consultancy firm to secure the transaction.

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