Building Permit Violated: The Neighbour Can Sue You

Picture the scene: you live in Hendaye, a nice house with a sea view. One morning, your neighbour starts building work. You learn that he is adding an extra storey, without respecting the distances from your property. You check the building permit: indeed, it is not compliant. What can you do? Can you sue him? Until this 1973 ruling, the answer was uncertain. Today, it is clear: yes, you can claim damages.

This decision, handed down by the Court of Cassation on 20 November 1973, marked a turning point. It recognised that the building permit does not only protect the general interest (town planning, safety) but also the private interests of neighbours. In practice, if your neighbour builds in violation of planning rules and this causes you harm (loss of view, loss of sunlight, decrease in the value of your property), you can sue him on the basis of quasi-delictual fault.

But be careful: you still have to prove personal and direct harm. What the judges clarified in this case is that a mere violation of the permit is not enough: the violation must have repercussions on your land. For example, a building that is too high and deprives you of light. That is what we will analyse.

The facts: a story that happens every day

We are in the 1970s. A clinic is built without a building permit, in violation of local regulations. Widow Y, owner of a neighbouring plot, complains: this illegal construction causes her harm, notably by reducing the possibilities of future use of her land. She seeks demolition of the clinic and damages.

The case comes before the Court of Cassation. The builder argues that the building permit only governs his relationship with the administration. In other words, only the State can hold him to account, not private individuals. A neighbour cannot rely on a violation of the permit to obtain compensation.

But the Court of Cassation does not follow this reasoning. It holds that if the building permit is granted subject to the rights of third parties, its violation constitutes a fault, not only towards the administration, but also towards neighbours whose properties suffer repercussions. In this case, the clinic built without a permit and in violation of planning rules reduced the possibilities of future use of Widow Y's land, causing her personal harm.

The Court therefore orders the builder to demolish the clinic and compensate the neighbour. A twist: a few years later, another similar case (Civ. 3rd, 1976) confirmed this jurisprudence, specifying that the harm can be remedied even if the construction is not entirely illegal, but simply non-compliant with the permit.

The reasoning of the court — explained

To understand this decision, we must return to the general law of civil liability, now codified in Article 1240 of the Civil Code (former Article 1382). This provision states that "any act of a person which causes damage to another obliges the person by whose fault it occurred to make reparation." The question was: does a builder's violation of a building permit constitute a "fault" within the meaning of this article?

The Court of Cassation answers in the affirmative. It explains that the building permit is granted in accordance with applicable legislative and regulatory provisions, but "subject to the rights of third parties." This reservation means that the permit cannot infringe the rights of neighbours. If the builder violates the permit, he commits a fault, not only vis-à-vis the administration (which can revoke the permit or impose criminal sanctions), but also vis-à-vis the neighbours who suffer harm.

This solution was innovative at the time. Before this ruling, some courts considered that the building permit was an administrative act that only created rights between the administration and the builder. Neighbours could only act on the basis of an abnormal neighbourhood disturbance (Article 544 of the Civil Code), which was more difficult to prove. Now, they have an additional weapon: quasi-delictual fault based on violation of the permit.

Be careful: the Court specifies that the harm must be personal and direct. It is not enough that the construction is illegal: the illegality must cause you specific damage. For example, loss of view, loss of sunlight, a reduction in the value of your property, or an impossibility to build yourself due to setback rules. In this case, the illegal clinic prevented Widow Y from fully using her land, which constituted compensable harm.

What this means for you — in practice

This jurisprudence has major implications for all owners, tenants and real estate professionals. Here is what it means in practice:

If you are the owner of a property neighbouring an illegal construction: you can take legal action to obtain demolition of the structure and/or damages. For example, in Lons, an owner obtained €15,000 in damages after proving that his neighbour's construction, in violation of the permit, caused a 20% loss in the value of his house. You must act within 5 years of the completion of the works (standard limitation period).

If you are a tenant: you can also act if the illegal construction disturbs your enjoyment (loss of light, obstructed view). You are not the owner, but you suffer personal harm. It is advisable to inform your landlord and act jointly.

If you are a builder (developer, individual having a house built): be aware that non-compliance with the permit exposes you to action by neighbours, in addition to administrative sanctions (fine, demolition ordered by the mayor). You must therefore be extremely rigorous in complying with the plans and planning rules.

If you are a buyer: before buying a property, check that existing constructions comply with the permit. If not, you could be sued by neighbours after the purchase (because you are considered to have "committed" the fault by continuing the violation). Consult a notary or lawyer to verify permits and certificates of conformity.

Four tips to avoid this type of dispute

• Check the building permit before buying or building: Consult the town planning department of your town hall to obtain a copy of the permit. Compare it with the actual construction. A difference of a few centimetres can be enough to cause harm.
• Have a bailiff's report made before works: If a neighbour starts works that seem irregular, have the state of the premises recorded by a judicial officer (bailiff). This will constitute evidence in the event of a dispute.
• Negotiate an amicable agreement: Before starting proceedings, try mediation. Sometimes the builder can modify his project to limit the harm. If an agreement is reached, have it approved by a lawyer to avoid later challenges.
• Scrupulously comply with your permit: If you are the builder, never deviate from the approved plans. Even a minor modification (a wider balcony, a different height) can be considered a violation and expose you to legal action.

Further reading: related case law and developments

This 1973 ruling has been confirmed by many subsequent decisions. For example, the Court of Cassation (3rd Civil Chamber, 1976) held that violation of a building permit constitutes a quasi-delictual fault even if the construction complies with the local plan but not with the permit. In other words, the permit prevails over general rules.

More recently, the Court of Cassation (Civ. 3rd, 2015) specified that the harm can be remedied even if the construction is not demolished, for example by a compensatory indemnity. The judges have full discretion to assess the harm: loss of market value, disturbance of enjoyment, aesthetic harm.

The current trend is therefore towards reinforced protection of neighbours. Courts do not hesitate to order demolition if the violation is serious. For the future, we can expect actions by neighbours to multiply, with the help of environmental protection associations. It is therefore more essential than ever to comply with your permit.

Key points to remember

1. Violation of a building permit is a fault towards neighbours.

2. To act, you must prove personal and direct harm (loss of view, loss of value, etc.).

3. The time limit to act is 5 years from the completion of the works.

4. You can claim demolition and/or damages.

5. If you are a builder, comply with your permit to the letter.

Do you find yourself 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 →