Planning Permission: When the Time Limit to Sue a Neighbour Has Already Expired

You live in Charleville-Mézières and your neighbour has just built an extension less than one metre from the boundary, whereas the local planning scheme requires a setback of three metres. You are furious, but you discovered the problem three years after the work was completed. Too late? The answer is yes, according to a decision of the Court of Cassation of 16 November 1982, which remains authoritative.

This decision, little known to non-lawyers, settles a tricky question: is the time limit for challenging an unlawful building on a civil law basis (Article 1240 of the Civil Code, which requires reparation for damage caused by fault) the same as that for bringing criminal proceedings (Article 8 of the Code of Criminal Procedure)? The answer is yes, which can trap many property owners.

In practice, if you let the limitation period for the public prosecution expire (generally 3 years from the date of the offence), your court action to have the building moved back will be inadmissible. A lesson to bear in mind before delaying.

The facts: a story that happens every day

Mr and Mrs X have owned a house in Charleville-Mézières, in the Ardennes, since 1965. Their neighbour, Mr Y, bought the adjoining land in 1970 and built a structure on it in 1972 that encroaches on the minimum distance of 3 metres imposed by the local planning scheme. The Xs, who often travel for work, only noticed the breach in 1975 during an extended stay.

They then sued Mr Y in the Reims High Court (tribunal de grande instance) on the basis of Articles 544 (right of ownership) and 1382 (former Article 1240) of the Civil Code, seeking demolition of the extension and withdrawal of the building to the required distance. In his defence, Mr Y raised the limitation period: the breach of the planning scheme is criminally punishable (Article 83 of the 1954 Code of Town Planning and Housing), and the public prosecution is time-barred after 3 years from the date of the offence (1972). However, the writ was issued in 1975, more than 3 years later.

The Paris Court of Appeal (because the case was remitted after an initial appeal) ruled in favour of Mr Y: the civil action based on the fault of failing to comply with the planning scheme is identical to the criminal offence, and therefore subject to the same limitation period. The Xs appealed to the Court of Cassation, arguing that their action was based on an infringement of their right of ownership and on abnormal neighbourhood disturbances, distinct from the planning offence. But the Court of Cassation dismissed their appeal on 16 November 1982, upholding the Court of Appeal's decision.

The court's reasoning — explained

The High Court laid down a simple but far-reaching principle: the civil fault of failing to comply with the requirements of a planning scheme is the same as the criminal offence under Article 83 of the Code of Town Planning and Housing (now codified as Article L. 480-4 of the Town Planning Code). Consequently, the civil liability action brought by the neighbouring owner to have the building moved back is subject to the limitation period for the public prosecution, namely 3 years (the period then in force; since 2017, the limitation period for public prosecution for a summary offence is 1 year, but for indictable offences such as breach of the local plan, it is 6 years).

The lower courts had already pointed out that Article 1382 of the Civil Code (now 1240) provides for compensation for damage caused by a fault, and that fault, in this case, is the breach of the planning scheme. However, this breach also constitutes a criminal offence. It would be illogical for the injured owner to circumvent the criminal limitation period by relying on civil grounds, when the fault is the same.

The Court of Cassation therefore rejected the Xs' argument that their action aimed to protect their right of ownership and to stop neighbourhood disturbances. It considered that the real basis of the claim was the failure to comply with the planning scheme, not an independent disturbance. Consequently, the action is time-barred.

This decision is not a departure from precedent: it is part of consistent case law equating civil fault with a criminal offence when both provisions protect the same interest. Here, the protected interest is compliance with planning rules, which benefits both the community and individuals.

What this means for you — in practice

If you own land in Charleville-Mézières, Épernay or elsewhere, and you notice that a neighbouring building does not comply with the distances required by the Local Town Planning Scheme (PLU) or a planning scheme, you must act quickly. The limitation period runs from the completion of the works, or, if the offence is continuous (such as a permanent encroachment), from its cessation. In practice, if the works are finished and you discover them three years later (or six years depending on the type of offence), you will be time-barred.

Take an example from Épernay: Mrs Z, owner of a house, sees her neighbour build a covered terrace 1.50 m from the boundary, when the PLU requires 3 m. She does not react immediately, thinking she can negotiate. Two and a half years later, relations deteriorate and she takes the matter to court. Her action will be admissible if she can prove that the limitation period (3 years for a summary offence) has not expired. But if she had waited 4 years, she would have no remedy.

For a tenant: you suffer the same disturbances (loss of sunlight, obstructed view) but you are not the owner. Nevertheless, you can act on the basis of abnormal neighbourhood disturbances, which is distinct from breach of the planning scheme. In this case, the limitation period is 5 years (the general period since the 2008 reform). But beware: if your action is based solely on non-compliance with the PLU, you will be subject to the criminal limitation period.

For a buyer: before purchasing a property, systematically check the compliance of existing buildings with planning rules. A non-compliant building can be subject to a demolition action, but only if the limitation period has not expired. After that, you cannot obtain its demolition, only possible damages.

Four tips to avoid this type of dispute

• Act as soon as you become aware of the problem: as soon as you see a suspicious building, take photos, note the date and consult a lawyer. Do not let months go by.
• Check the PLU before buying or building: ask for a planning certificate and consult the planning documents at the town hall. In Charleville-Mézières, the town hall publishes the PLU online, but a site visit is recommended.
• Start mediation in parallel: a conciliation attempt can interrupt the limitation period if formalised (e.g. by a registered letter with a request for mediation). But beware: simple oral negotiation does not interrupt the period.
• Do not confuse neighbourhood disturbances with a planning offence: if you suffer direct harm (loss of view, overshadowing), you can act on the basis of abnormal neighbourhood disturbances, which has a longer limitation period (5 years). But if your claim aims to enforce the PLU, the criminal limitation period applies.

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Further reading: related case law and developments

The Court of Cassation reaffirmed this principle in a decision of 12 July 2001 (No. 99-18.667): a civil action based on breach of a land use plan is time-barred if the public prosecution is time-barred. However, the High Court qualified its position in a decision of 3 March 2010 (No. 09-10.642): where the neighbourhood disturbance is distinct from the offence (e.g. noise nuisance from an activity not compliant with the PLU), the civil action may survive the criminal limitation period.

The current trend is therefore to distinguish according to the real object of the claim. If you seek demolition for non-compliance with distances, the criminal limitation period applies. If you seek damages for loss of value of your property caused by an unlawful building, the general limitation period (5 years) may apply, provided you prove a distinct harm.

In 2023, the Council of State (Conseil d'État) recalled that the limitation period for public prosecution in planning matters is 6 years for indictable offences (building without a permit) and 1 year for summary offences (non-compliance with the PLU). It is therefore crucial to correctly characterise the offence with the help of a lawyer.

Checklist before taking action

FAQ: questions you may ask

1. Can I sue my neighbour for non-compliance with the PLU if the works date back more than 3 years?
No, if your action is solely based on breach of the planning scheme. You must act before the expiry of the limitation period for the public prosecution (1 year for a summary offence, 6 years for an indictable offence).

2. What if I discover an offence after the limitation period has expired?
You can still try an action based on abnormal neighbourhood disturbances, if you suffer specific harm (loss of sunlight, loss of property value). But you will not obtain demolition.

3. Does the limitation period run from the end of the works or from discovery?
In principle, the period runs from completion of the works. However, if the offence is concealed (hidden), the starting point may be postponed to the date of its discovery. This is a question of fact to be proved.

4. Does a simple letter to my neighbour interrupt the limitation period?
No. Only a procedural act (writ, petition) or formalised mediation interrupts the limitation period. A simple letter has no effect.

5. Can I obtain damages without seeking demolition?
Yes. You can claim compensation for the harm suffered (e.g. loss of value of your property) even after the limitation period, if you prove that the harm arose and continued after the expiry of the period. But here again, you must act within 5 years from the manifestation of the harm.

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