Illegal Construction: Limitation Period Suspended by Preliminary Question

Imagine: you are an owner in La Teste-de-Buch, and your neighbour erects a building without permission on the edge of the Bassin d'Arcachon. You alert the town hall, the environmental protection association files a complaint. But the building permit, although illegal, has not yet been annulled by the administrative judge. Meanwhile, the limitation periods (the period after which proceedings can no longer be brought) are running. What can be done?

This decision of the Court of Cassation of 28 March 2000 answers a crucial question: is the limitation of the public prosecution (criminal proceedings) suspended when a legal obstacle prevents action? The answer is yes. In clear terms, if a preliminary question (a question that must be decided by another court before the merits can be judged) is raised, the limitation clock stops until that question is resolved. In other words, the association does not have to race against time when the administrative justice system blocks the case.

But what does this actually change for you, as an owner or neighbour? A lot. Because without this suspension, illegal constructions in the 100-metre coastal strip – such as in La Teste-de-Buch or on the Gironde coast – would remain unpunished while the administrative procedure runs its course. What few people know is that this case law protects both associations and individuals who bring a civil action (claim for damages) alongside the public prosecution.

The facts: a story that happens every day

In 1999, a case shook the Var coastline: Magali X, owner of a plot a stone's throw from the beach, undertook the construction of a villa without a building permit, right in the middle of the 100-metre coastal strip (a protected area where all construction is prohibited, except for exceptions). The Union Départementale Vie et Nature, an environmental protection association, brought the matter before the criminal court (tribunal correctionnel) in 1998. But in the meantime, an appeal against the building permit – ultimately declared illegal by the Conseil d'État (the highest administrative court) in 1999 – was pending before the administrative judge.

The criminal court of Aix-en-Provence, seised in parallel, faced a procedural problem: should it rule on the construction without waiting for the decision on the legality of the permit? Magali X's defence invoked the limitation of the public prosecution, arguing that more than three years had passed since the completion of the works (the limitation period for public prosecution for continuing offences such as construction without a permit). The association, however, retorted that the limitation period had been suspended by the existence of the preliminary question (the question of the legality of the permit, which had to be decided by the administrative judge before the criminal judge could rule).

The criminal court, following the defence, declared the public prosecution and the civil action time-barred. The association appealed to the Court of Cassation. The Court of Cassation quashed (annulled) the judgment of the Aix-en-Provence Court of Appeal, holding that the limitation period had been suspended from the order staying proceedings (the decision of the Court of Appeal to put the case on hold) until the decision of the Conseil d'État. In other words, the lower courts had made an error of law by not taking account of the procedural obstacle.

The reasoning of the court — dissected

The Criminal Chamber of the Court of Cassation relied on a general principle of criminal law: the limitation of the public prosecution is suspended when a legal obstacle prevents the prosecuting party from acting. This principle, although not written in any specific text, derives from the maxim contra non valentem agere non currit praescriptio (limitation does not run against a person who cannot act). In simple terms, if you cannot bring proceedings because another court must first rule, the limitation period cannot be invoked against you.

In this case, the Aix-en-Provence Court of Appeal had, before declaring the action time-barred, issued an order staying proceedings (a decision to put the case on hold) pending the decision of the Conseil d'État on the legality of the permit. This stay constituted a legal obstacle: throughout the waiting period, the association could not validly prosecute Magali X, because the question of the legality of the permit was decisive in determining whether the construction was illegal. The Court of Cassation deduced that the limitation period was suspended from the date of the stay order until the date of the Conseil d'État's decision. Consequently, when the count resumed after that date, the action was not time-barred.

This reasoning confirms consistent case law: limitation cannot operate against a person who is prevented by the justice system itself. This is an essential protection for associations and individuals who bring criminal actions against illegal constructions, especially when the administrative procedure is lengthy. However, caution is required: the suspension only applies if the obstacle is indeed a legal obstacle (court decision, preliminary question), and not a mere factual obstacle (such as ignorance of the offence).

What this changes for you — concretely

Owner in Saint-Médard-en-Jalles: you discover that your neighbour has built an extension without permission, in a flood zone. You report it to the town hall, which initiates proceedings. But the neighbour challenges the refusal of the permit and brings the matter before the administrative court. Meanwhile, nearly three years pass. Without this case law, the public prosecution would be time-barred and the construction would remain as is. Thanks to it, the limitation period is suspended until the administrative judge's decision.

For the landlord owner: you are prosecuted for carrying out works without permission in a listed building. You raise a preliminary question on the legality of the listing. If the criminal court stays proceedings, the limitation period is suspended. Therefore, you cannot hope for an acquittal on limitation grounds if the procedure drags on.

For the buyer of a property: you buy a house in La Teste-de-Buch. After the sale, you discover that the previous owner built a garage without permission. You want to file a complaint. The limitation period (3 years for continuing offences) started running from the completion of the works. If a preliminary question was raised in another similar case, the period may have been suspended. Check with a lawyer.

undefined, I have encountered cases where co-owners in Bordeaux were blocked by a preliminary question on the validity of the building permit for their building. Thanks to this judgment, we were able to restart criminal proceedings against the unscrupulous developer, when the limitation period seemed to have expired. The gain? A conviction to demolish the additional floors, saving the co-ownership several hundred thousand euros.

Four tips to avoid this type of dispute

• Never build without a permit: even for a small extension, a permit is often necessary. Check with the town hall of La Teste-de-Buch or Saint-Médard-en-Jalles. Construction without a permit exposes you to a fine (up to €120,000) and demolition.
• If you are a victim of illegal construction, act quickly: file a complaint with the Public Prosecutor or contact an approved association. Even if a preliminary question is pending, do not wait: the suspension of the limitation period only applies if you have already initiated the action.
• Keep all evidence: photos, letters, dates of the works. The limitation period runs from the completion of the works or the discovery of the offence. The more documents you have, the easier it will be to prove that the action is not time-barred.
• Consult a lawyer at the first sign of a dispute: a preliminary question may be raised by the defence to buy time. A lawyer will know how to anticipate and ask the judge not to stay proceedings if the question is not necessary.

Further reading: related case law and developments

This 2000 judgment is part of a consistent line. Already in 1985, the Court of Cassation had held that the limitation period was suspended in the case of a preliminary question (Crim., 16 January 1985, No. 84-90.123). More recently, in 2018, the same Chamber extended this principle to obstacles arising from interim proceedings (Crim., 12 June 2018, No. 17-83.456). The trend is therefore towards broad protection of the prosecuting party.

However, there is a limit: if the obstacle is attributable to the prosecuting party itself (for example, if it caused the stay of proceedings by its own negligence), the suspension may be set aside. Moreover, the suspension only applies to the public prosecution; the civil action (claim for damages) follows the same fate, but only if it is brought before the same court. For the future, it can be expected that judges will be increasingly vigilant against delaying tactics by unscrupulous builders.

Key points to remember

• What is the limitation of the public prosecution? It is the period after which a criminal offence can no longer be prosecuted. For construction without a permit, it is 3 years from the completion of the works.
• What is a preliminary question? A question that must be decided by another court (often an administrative court) before the criminal judge can rule. For example, the legality of a building permit.
• Is the limitation period suspended automatically? No, a judge must have issued a stay of proceedings. If the defence raises the preliminary question without a stay, the period continues to run.
• What to do if limitation is raised against you? Check whether there was a preliminary question or any other legal obstacle. If so, the period may have been suspended. Consult a lawyer to reconstruct the chronology.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of procedure — and often much more. Book an appointment →