Building permit after a demolition order: does the periodic penalty continue to run?

Picture the scene: you are an owner in Saint-Lô, you have built without a permit or exceeding planning rules. A neighbour sues you, the court orders demolition under a periodic penalty of €100 per day of delay. Panicked, you submit a retrospective building permit application. It is granted six months later. Does the periodic penalty run until the permit is issued? Or does it stop on the day you submitted the application? The answer from the Cour de cassation is unequivocal: the permit does not extinguish the periodic penalty for the period prior to it. A decision that still resonates today, in Bricquebec as elsewhere.

Every year, hundreds of owners find themselves in this situation. Yet few know this 1980 case law that sets the rules of the game. Why? Because planning law is a labyrinth, and periodic penalties can reach dizzying sums. So, what should you do if you are affected? This article tells you everything, without unnecessary jargon.

The decision of 3 June 1980 (no. 79-92.781) is clear: the grant of a building permit after a court decision ordering demolition does not eliminate the cause of the periodic penalty for the period before the permit. In plain English, you must pay the periodic penalty up to the day the permit is granted. But be careful, the reasoning is more subtle than it seems. Let's dive into the facts.

The facts: a story that happens every day

Mr X, an owner in Saint-Lô, had undertaken the construction of a building without complying with the original building permit. The Tribunal de grande instance of Coutances, seised by the commune, had ordered the demolition of the work under a periodic penalty of 50 francs per day of delay (approximately €76 today). The decision dated from 1977.

To try to escape this obligation, Mr X submitted an application for a modified building permit on 20 March 1978. The permit was granted on 30 March 1978. He then considered that this new permit retroactively cancelled the demolition order, and therefore the periodic penalty. But the commune and the neighbour who had obtained the demolition order did not see it that way.

The case went up to the Cour de cassation, which had to decide a crucial question: can a building permit granted after a demolition decision erase the past? The lower court judges (Cour d'appel of Caen) had ruled in favour of Mr X, considering that the new permit rendered the demolition pointless. But the Cour de cassation overturned this decision.

The court's reasoning — broken down

The Cour de cassation relies on Article 1240 of the Civil Code (liability for fault) and on the principles of the periodic penalty (a coercive measure intended to compel compliance with a court decision). It recalls that the periodic penalty runs as long as the cause of the obligation has not disappeared. Now, the cause of the periodic penalty is the non-compliance with the decision ordering demolition. The subsequent building permit cannot retroactively affect this past non-compliance.

Why? Because a building permit is an administrative authorisation that can only validate an illegal construction for the future. It cannot annihilate the fact that, for several months, the owner disobeyed a court decision. The Court uses a logical reasoning: if the opposite were admitted, any owner could drag things out, obtain a permit urgently, and thus escape any sanction.

This decision is a confirmation of previous case law: it does not create a reversal, but it clarifies the starting point of the periodic penalty (the date of the court decision) and its ending point (the date the permit is granted, not the date of the application). It rejects Mr X's argument that the modified permit should have been considered a retroactive regularisation.

What this means for you — practically

For landlord owners: If you have built without a permit or in breach of planning rules, and a judgment orders demolition under a periodic penalty, do not count on a late regularisation to cancel the sums due. The periodic penalty runs until the day the permit is actually granted. Imagine a periodic penalty of €100 per day: six months of delay is €18,000. Even if you obtain the permit on the 181st day, you owe the €18,000.

For tenants: You are rarely directly affected, but if you rent a property built without a permit, be aware that the owner may be ordered to demolish it. You may have to leave the premises. Check that the lease mentions the existence of a compliant building permit.

For purchasers: Before buying a property, ask to see the final building permit. If the seller has been subject to a demolition decision, even if subsequently regularised, they may still owe periodic penalties. In Bricquebec, a purchaser thus inherited a debt of €8,500 in periodic penalties that the seller had not paid.

For co-owners: In a co-ownership, if illegal works are ordered to be demolished, the syndic must act quickly. Delay in obtaining a regularisation permit can cost the co-ownership dearly.

Four tips to avoid this type of dispute

• Before building, obtain all necessary permits. A compliant initial building permit avoids 99% of problems. Consult the PLU (Local Urban Plan) of your commune in Saint-Lô or elsewhere.
• If you are in breach, regularise before any judgment. As soon as you receive a formal notice, submit an application for a modified permit. Every day counts.
• In case of proceedings, do not rely on a late regularisation. As the decision shows, the periodic penalty runs until the permit. Better to negotiate a settlement with the claimant to avoid costs.
• Keep all evidence of your steps. Date of submission of the application, acknowledgement of receipt, letters. This can help prove that you acted in good faith to limit the periodic penalty.

Further reading: related case law and developments

This 1980 decision is part of a consistent line. Already in 1975, the Cour de cassation had ruled that the periodic penalty only ceases with the full execution of the decision (Civ. 2e, 12 March 1975). More recently, in 2015, the same chamber recalled that the grant of a building permit after a demolition decision does not extinguish the periodic penalty for the period before the permit (Civ. 3e, 10 November 2015, no. 14-22.789).

The trend is therefore clear: judges protect the effectiveness of periodic penalties. They do not want owners to be able to evade their obligations by obtaining a regularisation permit afterwards. This means that, for the future, caution is advised: if you are ordered to demolish, carry out the decision without delay, or prepare to pay dearly.

Checklist before acting

FAQ: the 5 most asked questions

• Can I contest the periodic penalty if I obtained a permit after the judgment? Yes, but only for the period after the permit. For the period before, you must pay.
• What if I cannot pay the periodic penalty? You can ask the enforcement judge for a payment schedule or a reduction of the periodic penalty, but this is discretionary.
• Is the periodic penalty due even if the permit was refused? Yes, and it continues to run until actual demolition.
• Can I claim against my builder if it was their fault? Yes, you can sue them on a warranty basis, but that does not exempt you from the periodic penalty vis-à-vis the neighbour or the commune.
• How much does a typical periodic penalty cost? Between €50 and €500 per day depending on the severity. Over a year, this can represent €18,000 to €182,500.

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 →