Building or Demolition Permit: Does Not Replace the Authorisation under the 1948 Law

Picture the scene: in Beausoleil, a landlord wants to recover his flat to sell it. He obtains a demolition permit, then a building permit for a new building. He serves notice on his tenant, confident that he is in order. Yet the court annuls his notice. Why? Because these permits do not replace the special authorisation required by the 1948 law. A decision of the Court of Cassation of 22 November 1995 (No. 93-21.723) forcefully reminds us of this. You thought the building permit was enough? Think again.

The facts: a story that happens every day

Mr. X is the owner of a flat in Beausoleil, let under the regime of the Law of 1 September 1948. This law, which protects tenants, requires the landlord who wishes to give notice for demolition or reconstruction to obtain prior authorisation from the minister responsible for construction (Article 12). Mr. X, thinking he was doing the right thing, applied for and obtained a demolition permit and then a building permit. Armed with these documents, he served notice on his tenant several years later. The tenant challenges this: according to him, the notice is void because the permits do not constitute the special authorisation under Article 12. The case goes before the Versailles Court of Appeal, which rules in favour of the landlord: it holds that the building and demolition permits, issued by the delegate of the same minister, constitute the required authorisation. The tenant appeals in cassation. The Court of Cassation quashes the judgment: neither the demolition permit nor the building permit serves as the authorisation provided for by the 1948 law. The case is referred to another Court of Appeal.

The reasoning of the court — analysed

The Court of Cassation relies on Article 12 of the Law of 1 September 1948. This provision requires a special authorisation, separate from planning permits, for the landlord to be able to give notice for demolition or reconstruction. Why this requirement? Because the law protects tenants against abusive notices: the landlord must demonstrate a genuine and serious project, and the ministerial authorisation allows for prior control. The judges recall that the building permit and the demolition permit have different purposes: the former checks the project's compliance with planning rules, the latter authorises demolition. Neither verifies that the landlord genuinely intends to carry out the works within a reasonable time, nor protects the tenant as required by the 1948 law. In short, the landlord cannot simply rely on a permit. He must obtain the special authorisation, even if it is issued by the same department. The decision is a stern reminder: the formalities of the 1948 law are independent of planning rules.

What this means for you — concretely

For a landlord in Villefranche-sur-Mer, this decision means that you must imperatively obtain the authorisation under Article 12 before giving notice for demolition or reconstruction. Do not rely on your building permit! If you give notice without this authorisation, the notice is void and you may have to compensate the tenant. Example in figures: a flat rented at €800/month, the tenant may claim damages equivalent to several months' rent, or even reinstatement. For a tenant, this decision is a protection: if your landlord gives you notice with a building permit but without special authorisation, you can challenge it. For a buyer, check that the seller has complied with the procedure before purchasing a vacant property. For a property professional, advise your landlord clients not to neglect this formality.

Four tips to avoid this type of dispute

• Obtain prior authorisation: Before serving notice for demolition or reconstruction under the 1948 law, submit an application to the competent authority (ministry or delegate). The authorisation is separate from the permit.
• Do not confuse procedures: Building permit, demolition permit and authorisation under the 1948 law are three different things. Each has its own purpose and deadlines.
• Respect deadlines: The authorisation must be obtained before the notice is served, not after. A notice served without authorisation is void, even if you obtain it later.
• Get assistance: A lawyer specialising in property law will check that you have all the necessary authorisations. The mistake is common and costly.

Further reading: related case law and developments

This decision is part of a consistent line: the Court of Cassation ensures the autonomy of the 1948 law. In a judgment of 28 June 1989 (No. 87-14.876), it had already held that the building permit does not constitute authorisation to give notice. The 1995 decision confirms and clarifies: even the demolition permit, although more specific, is not sufficient. The courts remain strict: no confusion is possible between planning and tenant protection. In the future, if you are a landlord, expect the judges to scrutinise compliance with Article 12. A tip: plan ahead and follow the steps in order.

Frequently asked questions

Can I give notice to my tenant if I have a building permit?
No, the building permit does not replace the authorisation under Article 12 of the 1948 law. You must obtain this special authorisation, even if you already have the permits.

What happens if I give notice without the authorisation?
The notice is void. The tenant may remain in the premises and claim damages. You risk having to compensate him for the loss suffered (removal costs, etc.).

Where do I apply for the authorisation under Article 12?
From the minister responsible for construction or his delegate in the department. Enquire at the Direction Départementale de l'Équipement (DDE) or the prefecture.

Does this rule apply to all dwellings?
No, only to dwellings subject to the Law of 1 September 1948, i.e. mainly older properties in certain areas (notably large cities and their agglomerations).

What are the time limits for obtaining the authorisation?
The law does not set a precise time limit, but it is advisable to apply several months before the intended notice date. The administration may take 2 to 4 months to respond.

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 →