Criminal Limitation in Construction: When the Public Prosecution Extinguishes the Criminal Nature of Works

Picture the scene: you have just bought a nice 1970s house in Joué-lès-Tours, with a converted garage that could become a bedroom. Everything seems in order, until one day a neighbour tells you that this garage was built without planning permission. Panic stations! But what are you really risking if the works are more than three years old?

The question every owner or buyer faced with old unauthorised works asks: can you still be criminally liable years later? Criminal planning law sets limitation periods after which the public prosecution (i.e. the possibility for the public prosecutor to bring proceedings) is extinguished. But what about the criminal nature of the facts themselves?

The decision of the Court of Cassation of 27 October 1993 (No. 92-82.374) gives a clear answer: the limitation of the public prosecution removes any criminal character from the facts pursued. In other words, once the period has passed, the works are no longer considered a criminal offence. But be careful: this does not mean that you are off the hook civilly or administratively. Analysis.

The Facts: A Story Like Many Others

Mr. Serge X, an owner in Joué-lès-Tours, had carried out construction works on his land without administrative authorisation. The town hall, alerted by a neighbour, had brought criminal proceedings. The case was brought before the criminal court, then the Poitiers Court of Appeal. In 1992, the latter declared Mr. X guilty of the offence of building without a permit, despite the fact that the public prosecution was time-barred (the limitation period for planning offences was three years at the time).

The Court of Appeal's judgment was contradictory: on the one hand, it noted that the public prosecution was time-barred, but on the other hand, it still convicted the defendant. It considered that the facts retained their illegal character, even after limitation. Mr. X appealed to the Court of Cassation.

The Court of Cassation overturned this reasoning: it recalled that the limitation of the public prosecution is not merely a procedural bar, but has the effect of removing any criminal character from the facts pursued. In other words, if the public prosecution is time-barred, the facts can no longer be classified as a criminal offence. The Court of Appeal could not therefore declare Mr. X guilty while acknowledging the limitation.

The Reasoning of the Court — Analysed

The Court of Cassation's reasoning is based on a fundamental principle of criminal law: extinctive limitation extinguishes the public prosecution, but also the penalty and, according to this case law, the criminal classification itself. In short, once the limitation period has expired, the facts are no longer considered an offence. This follows from Article 8 of the Code of Criminal Procedure (for misdemeanours) and Article 9 for petty offences.

The High Court specified that the Court of Appeal could not "presume the construction to be irregular" after having noted the limitation. Indeed, if the facts are no longer criminal, they cannot serve as a basis for a criminal conviction. It is an implacable logic: limitation is not a mere excuse, it retroactively nullifies the criminal character of the facts.

This decision follows a consistent line of case law: the Court of Cassation has already held, for example in a 1985 judgment, that the limitation of the public prosecution causes the offence itself to disappear (Crim., 10 June 1985, No. 84-93.572). It is therefore not a departure, but a confirmation.

The arguments of the defence (the appellant) were simple: limitation had occurred, so no conviction was possible. The prosecution (the Public Prosecutor's Office) argued on the contrary that the facts remained illegal, allowing the judge to note them and impose a penalty. The Court of Cassation ruled in favour of the defence: limitation extinguishes everything, including the classification.

What This Changes for You — Practically

This decision has major practical implications for owners, buyers, and even neighbours.

For the landlord owner: If you carried out works without a permit more than three years ago (or six years for misdemeanours since the Law of 9 March 2004), you can no longer be criminally prosecuted. Concrete example: in Loches, an owner converted an attic into a dwelling without authorisation in 2015. In 2023, the six-year limitation period (Article 8 of the Code of Criminal Procedure) has expired. He no longer risks criminal conviction. However, the town hall can still seek demolition on the civil side (real action in rem, thirty-year limitation) or administratively (injunction to regularise).

For the tenant: You are not directly affected by criminal limitation, but you could suffer consequences if the owner is prosecuted (e.g., a demolition order). If you are a tenant of a dwelling resulting from unauthorised works, you can rely on the lack of a permit to seek a rent reduction or lease termination (latent defect).

For the buyer: This is the most delicate point. Before buying a property in Joué-lès-Tours or elsewhere, check the history of planning permits. If irregular works date back more than three years, the seller can no longer be criminally prosecuted, but you, as the new owner, could be exposed to civil actions (e.g., a neighbour bringing a demolition action). Criminal limitation does not cover civil actions for compensation for damage suffered by a third party.

For the co-owner: If irregular works are carried out in the common parts without authorisation, criminal limitation may benefit the manager or the co-owner who carried out the works. But the co-ownership association can bring a civil action to stop the disturbance (e.g., a claim for restoration).

What few people know is that limitation of the public prosecution does not erase the administrative illegality. The town hall can still issue an interim works order or bring demolition proceedings before the civil court. undefined, I have seen cases where an owner thought he was safe after three years, but was faced with a claim for thousands of euros in damages from a neighbour.

Four Tips to Avoid This Type of Dispute

• Check authorisations before buying. Before signing a preliminary contract, ask the seller for all planning permits and prior declarations. If works were done without authorisation, demand regularisation or a price reduction. A notary can help you consult the land registry and planning authorisations at the town hall.
• Keep all your permits and declarations. If you carry out works, keep the receipts of prior declarations and planning permits safe. In case of an inspection, you can prove that the works are authorised or, failing that, that the limitation period has passed.
• In case of a dispute with a neighbour, do not delay. If you notice irregular works at your neighbour's in Joué-lès-Tours, act quickly. The three-year (or six-year) limitation period runs from the completion of the works. Once this period has passed, you can no longer bring criminal proceedings, but you can still act civilly within 30 years (demolition action).
• Send a formal notice to the town hall. If the town hall refuses to act against illegal works, you can send a formal notice to cease the infringement. In case of inaction, you can take the matter to the administrative court. Warning: this action does not stop the criminal limitation period, but it may lead to an injunction.

Further Analysis: Related Case Law and Developments

The decision commented here is part of a line of judgments that confirm the principle that limitation of the public prosecution nullifies the criminal character of the facts. For example, we can cite the judgment of the Criminal Chamber of 10 June 1985 (No. 84-93.572) which already states this principle in matters of building without a permit. More recently, in a judgment of 20 March 2013 (No. 12-80.561), the Court of Cassation specified that limitation of the public prosecution makes any criminal conviction impossible, even if the facts are materially established.

The trend of the courts is therefore constant: limitation is a cause of extinction of the offence itself. However, a distinction must be made between limitation of the public prosecution (criminal) and limitation of the civil action. In planning matters, a demolition action brought by a neighbour or the municipality is subject to a 30-year limitation period (Article 2227 of the Civil Code). Thus, even if the neighbour can no longer file a criminal complaint, he can still ask the civil court to order demolition within this period.

For the future, it can be expected that the case law will maintain this line, but legislative changes could modify limitation periods (for example, an extension for planning offences). In the meantime, the principle remains: once the period has passed, no penalty, but beware of civil actions.

In Practice: What to Do

• Q: What should I do if I discover irregular works at my neighbour's in Joué-lès-Tours?
  A: First check the date of completion of the works. If less than 3 years (or 6 years for misdemeanours), you can file a complaint with the public prosecutor. If the period has passed, you can take the matter to the judicial court to seek civil demolition. In both cases, gather evidence (photos, witness statements, bailiff's report).
• Q: Can I be criminally convicted for works carried out by the previous owner?
  A: No, if the public prosecution is time-barred. But you can be sued civilly by a neighbour or the town hall to stop the illegal situation (e.g., demolition). You may also be required to regularise the works if possible.
• Q: What is the limitation period for a planning offence?
  A: For petty offences (failure to make a prior declaration), it is 1 year (Article 9 of the Code of Criminal Procedure). For misdemeanours (building without a permit, modification of a permit), it is 6 years (Article 8 since 2004, previously 3 years). The period runs from the completion of the works.
• Q: Does criminal limitation erase administrative illegality?
  A: No. The town hall can still issue a works stoppage order or bring demolition proceedings before the administrative or civil court. Moreover, the property retains its irregular character, which can cause problems during a sale (obligation to inform the buyer).
• Q: How much does a court action for irregular works cost?
  A: Lawyer's fees vary depending on complexity. A civil action can cost between €1,500 and €5,000, plus any expert fees. A criminal action is free, but the delays are long. It is better to attempt conciliation with the neighbour or the town hall before starting proceedings.

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