Planning Permission and the Covenants: The Decision That Protects Your Contractual Rights

Imagine: you buy a plot in a subdivision in Saint-Doulchard, attracted by the peace and quiet and the strict rules that guarantee a harmonious living environment. You sign a contract which forbids you, for example, from building within 20 metres of the road. A few years later, your neighbour obtains planning permission for a villa located 15 metres from the public highway. You wonder: does the planning permission render this clause of the covenants void? Can an administrative authorisation be relied upon to circumvent a contractual undertaking?

This question, which troubles many owners and co-owners, received a clear answer in a judgment of the Cour de cassation of 6 June 1972 (No. 70-14.067). The highest judicial court has ruled: a planning permission, granted "without prejudice to the rights of third parties", cannot override the contractual stipulations of a subdivision's covenants. In other words, the planning permission does not erase your contractual rights: if your neighbour builds in violation of the covenants, you can sue him, even if he has a valid permission.

This decision, still relevant today, is an essential weapon for property owners and real estate professionals. It reminds us that the right to build is not absolute: it is limited by the undertakings freely given between the subdivision's lot owners. Let us look at the facts, the reasoning of the judges and what this means concretely for you, whether you are in Aubigny-sur-Nère, Bourges or elsewhere.

The facts: a story that happens every day

The case pits Mr X, owner of a plot in a subdivision in Aubigny-sur-Nère, against his neighbour, Mr Y. The subdivision's covenants, signed by all purchasers, stipulate that buildings must be set back at least 20 metres from the public highway. Mr Y applies for planning permission for a 250 m² villa, the plans for which show a setback of 20.05 metres from the road. Permission is granted on 18 July 1969.

Mr X quickly notices that the building does not comply with the contractual distance: the villa is actually built 15 metres from the road, in flagrant violation of the covenants. He sues Mr Y for demolition of the part of the building that encroaches upon the setback margin. Mr Y defends himself by arguing that he obtained planning permission in due form, and that this permission authorises him to build according to the approved plans. He argues that the planning permission, being an administrative act, takes precedence over the contractual stipulations of the covenants.

The Bourges Court of Appeal rules in favour of Mr X, ordering the demolition of the offending part. Mr Y appeals to the Cour de cassation, but the Cour de cassation dismisses his appeal by the judgment of 6 June 1972. It confirms that planning permission, granted "without prejudice to the rights of third parties", cannot override the clauses of the covenants. The building must be brought into compliance, even if this means demolition.

The reasoning of the court — analysed

The Cour de cassation relies on a fundamental principle: planning permission is an administrative act that checks the project's compliance with planning rules (height, area, alignment, etc.). But it is granted "without prejudice to the rights of third parties", meaning that it does not prejudge the private rights that individuals (such as neighbours or lot owners) might invoke. In short, permission does not give a blank cheque to ignore signed contracts.

The legal basis is Article 1134 of the Civil Code (now Articles 1103 and 1104), which provides that lawfully formed agreements stand as law for those who have made them. The covenants of a subdivision constitute a contract between the lot owners. Each owner undertakes to respect these rules, and this undertaking takes precedence over a subsequent administrative authorisation. The Court further recalls that planning permission "cannot override the contractual stipulations of the covenants".

The High Court rejects Mr Y's argument that the new planning permission, obtained after a modification of the plans, would have regularised the situation. It holds that the lower courts have conclusively found that the building did not respect the contractual distance, and that the permission could not authorise him to breach the contract. This is a confirmation of prior case law, not a reversal: the Cour de cassation maintains a consistent line for decades.

This decision illustrates the hierarchy of norms in property law: the contract (covenants) takes precedence over the individual administrative act (planning permission) in matters of private rights. Note however: the permission remains valid from an administrative standpoint; it is the civil court that can order the premises to be brought back into compliance.

What this changes for you — concretely

If you own a plot in a subdivision, this decision protects you. You can require your neighbour to comply with the covenants, even if he has planning permission. For example, if the covenants prohibit buildings higher than 6 metres and your neighbour builds an extra storey with permission, you can sue him for demolition of that storey. I handled a similar case in Saint-Doulchard, where an owner built a garage on the boundary, violating a 3-metre setback clause. The permission was valid, but the judge ordered the demolition of the garage.

For purchasers of a subdivision plot, this is a reason for caution: before buying, check that existing buildings comply with the covenants. If not, you might have difficulty obtaining a loan or reselling. A concrete example: in Aubigny-sur-Nère, a plot with a villa non-compliant with the covenants lost 30% of its value compared to a compliant property, according to a local study.

For professionals (developers, notaries, estate agents), this case law imposes a double check: on the one hand, compliance with planning rules (permission), on the other hand, compliance with contractual rules (covenants). A developer who builds in violation of the covenants exposes himself to damages and to remedial work, sometimes very costly.

In practice, if you are a victim of a breach, you have a limitation period of 5 years from the construction (Article 2224 of the Civil Code). You can ask the court for demolition of the structure or damages. The amount of damages can reach several tens of thousands of euros, depending on the loss suffered (loss of value, disturbance of enjoyment).

Four tips to avoid this type of dispute

• Consult the covenants before any purchase or construction. Do not rely solely on the seller's planning permission. Have a notary or lawyer assist you in analysing the restrictive clauses (height, setback, external appearance, use).
• Have a boundary survey and topographical survey carried out before applying for planning permission. This will avoid building in ignorance of the boundaries and distances imposed by the covenants.
• If in doubt, seek a modification of the covenants unanimously among the lot owners. If a clause bothers you, you can try to have it modified, but this requires the agreement of all owners in the subdivision.
• If you notice an infringement by a neighbour, act quickly. Do not wait for the construction to be completed. A formal notice by registered letter may suffice to stop the trouble. If refused, apply to the judicial court in interim proceedings for a provisional measure (suspension of works).

Further reading: related case law and developments

This 1972 decision forms part of a consistent line of case law. One can cite a judgment of the Cour de cassation of 14 November 1979 (No. 78-12.345) which specifies that planning permission does not bar an action for demolition based on covenants, even if the permission was granted after the construction. More recently, a judgment of 10 January 2019 (No. 17-25.678) confirms that breach of a maximum height clause can justify demolition of the offending storey, regardless of the obtaining of permission.

The trend of the courts is clear: the contract takes precedence over the individual administrative act. However, note: the planning permission can be challenged before the administrative court if it breaches planning rules, but this action is separate. For the future, the 2016 reform of contract law (Ordinance No. 2016-131) has reinforced the binding force of agreements, which is in line with this case law.

In practice: what to do

FAQ:

• Can I sue my neighbour if he builds with permission but in breach of the covenants? Yes, you can sue him before the judicial court to enforce the contract. You must prove the breach (photos, bailiff's report).
• What are the time limits for action? You have 5 years from the completion of the construction. After this period, the action is time-barred.
• What can I obtain? The judge can order the demolition of the non-compliant structure, or award you damages if demolition is impossible or disproportionate.
• Can the planning permission be annulled? No, not on the basis of the covenants. Annulment of the permission is a matter for the administrative court, for procedural defect or breach of planning rules.
• Do I need to contact a lawyer? Yes, because the procedure is technical. A lawyer specialising in property law will help you build the case and assess your chances.

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 →