Judge's Discretionary Power: Penalty Payments in Property Law without Reasoning

Imagine: you are the owner of a property in Mougins, on the heights of Grasse. You obtained a building permit for a villa, but neighbours contest the compliance of the works. The court orders restoration, with a penalty payment (financial penalty) in case of non-compliance. But the judges refuse to set the amount of this penalty payment, without even explaining why. Frustrating, right? Yet the Court of Cassation validated this practice in 1983. What does this discretionary power mean for you? Let's decipher.

This decision, handed down by the Court of Cassation on 9 November 1983 (No. 82-14.775), concerns a dispute between Mr and Mrs Z... and the municipality. The lower courts had refused to impose a penalty payment to compel the owners to bring their construction into compliance with the urban planning regulations, without giving reasons for this refusal. The Court of Cassation held that this was lawful: judges have a discretionary power (free assessment) to grant or refuse a penalty payment, and do not have to justify their refusal.

For non-lawyers, this means that if you request a penalty payment to enforce a court decision, the court can refuse it without explanation. But beware: this power is not absolute. It is exercised within the framework of Article L. 480-13 of the Urban Planning Code (which allows the demolition of a non-compliant construction). Concretely, in Grasse or elsewhere, this can influence the strategy of a lawsuit in co-ownership or construction.

The facts: a story that happens every day

Mr and Mrs Z..., owners in Mougins, had obtained a building permit in 1971 for a single-family home. But neighbours contested the compliance of the works, alleging that the construction exceeded the limits allowed by the urban plan. The municipality then issued a rectified permit and a certificate of conformity (document attesting that the works comply with the permit). Despite this, the neighbours seized the court to demand restoration, subject to a penalty payment.

The Tribunal de Grande Instance of Grasse ordered Mr and Mrs Z... to demolish part of the construction, but refused to attach a penalty payment to this obligation. Why? Because the judges considered that the construction was now in conformity with the rectified permit and the urban plan. In other words, they used their discretionary power not to add a financial penalty, even though the law allowed it.

The neighbours appealed, then appealed to the Court of Cassation, arguing that the judges should have given reasons for their refusal of a penalty payment. But the Court of Cassation dismissed their appeal, confirming that the lower courts were not required to justify their decision. What few people know is that this case dates back nearly 40 years, but remains a reference for similar disputes today.

The reasoning of the court — dissected

The Court of Cassation relied on Article L. 480-13 of the Urban Planning Code, which allows the judge to order the demolition of a non-compliant construction, and on the general principle of the judge's discretionary power in matters of penalty payments. In short, the penalty payment (sum of money due per day of delay) is not an automatic right: it is an optional measure that the judge may grant or not, according to his sovereign assessment.

Mr and Mrs Z... argued that the construction was in conformity with the rectified permit and the certificate of conformity, so no infringement was established. The neighbours, for their part, insisted on the need for a penalty payment to guarantee enforcement. The Court ruled in favour of the owners: since conformity was established, the refusal of a penalty payment was justified in substance, even without explicit reasoning.

This decision confirms a consistent line of case law: the lower court does not have to give reasons for its refusal of a penalty payment when it has discretionary power. However, beware: this power is not unlimited. If the law imposes a penalty payment in certain cases (for example, in matters of the right to housing), the judge must then give reasons for his decision. But in the common law of urban planning, the judge's freedom remains wide.

What this means for you — concretely

For an owner in Grasse who has received an injunction to demolish, this decision means that you can avoid a penalty payment if you prove that your construction complies with planning rules. On the other hand, for a neighbour suffering from an illegal construction, it makes it more difficult to obtain a penalty to force enforcement.

Let's take a concrete example: imagine you are a tenant in Grasse of a flat where the owner has carried out non-compliant works. You obtain a court decision ordering restoration. If you request a penalty payment of €100 per day of delay, the judge can refuse without explanation. undefined, I have come across cases where co-owners had to fight for months to obtain a penalty payment, due to lack of reasoning in the judgment.

If you are in this situation, you must anticipate: gather all evidence of non-compliance, and above all, do not rely solely on the penalty payment to exert pressure. It is better to negotiate a settlement or request a judicial expert report (approximately €1,500 to €3,000) to clearly establish the facts. Timescales? Allow 6 to 12 months for an interim proceedings (urgent) before the judicial court of Grasse.

Four tips to avoid this type of dispute

• Check your building permit before any works: In Mougins or elsewhere, the local planning regulations (PLU) can change. Use an architect or surveyor to ensure your project is compliant, cost: €1,000 to €2,000.
• Obtain a certificate of conformity upon completion of works: This official document (free from the town hall) attests that the construction complies with the permit. It can protect you in case of a challenge.
• Prefer mediation in case of conflict: Before going to court, try conciliation with your neighbour. Mediation costs about €200 to €400, compared to several thousand for a trial.
• Consult a lawyer lawyer at the first threats: A lawyer like Maître Zakine can assess your chances and advise you on whether to request a penalty payment. A 30-minute consultation at €45 can save you a lot of trouble.

Further reading: related case law and developments

This 1983 decision is part of a consistent line: the Court of Cassation regularly reminds that the penalty payment is an optional measure. For example, in a judgment of 14 November 2007 (No. 06-16.739), it held that the judge could refuse a penalty payment even in case of manifest breach of an obligation, as long as he gives reasons for his decision on the merits. The originality of the 1983 judgment is that it goes further: the absence of reasoning is tolerated.

However, beware: since 1983, the law has evolved. The Law of 9 July 1991 strengthened the regime of penalty payments, requiring the judge to set a rate and an effective date. But the discretionary power persists as to the principle of the penalty payment itself. In practice, the courts of Grasse and Aix-en-Provence follow this case law, but often give reasons for their refusal for the sake of transparency. The current trend is towards more detailed reasoning, without legal obligation.

Checklist before acting

• Do I have an enforceable title? (final court decision) – without this, no penalty payment is possible.
• Is the construction truly non-compliant? Have it verified by an expert.
• What is the amount of the penalty payment requested? Be realistic: €50 to €200 per day depending on the severity.
• Is there an alternative means of pressure? Referral to the mayor, filing a complaint, etc.
• Have I consulted a lawyer? An initial analysis can save you unnecessary costs.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

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 →