Promise to sell a communal plot of land: when does the mayor bind the commune?

Imagine: you are an owner in Fontaine, in Isère, and you have obtained a promise to sell from the mayor for a communal plot of land. You sign, you make plans, but suddenly the prefecture blocks the sale. The commune withdraws. What can you do? This situation, experienced by Mr. Cazale in the 1960s, gave rise to a ruling of the Court of Cassation on 12 June 1974 which clarifies the conditions under which a mayor can bind his commune.

The question that every buyer of a communal asset asks: is a promise to sell signed by the mayor valid without the agreement of the prefecture? And if the price is modest, can the commune back out? The answer lies in a subtle balance between the right of communes to sell their property and the protection of bona fide buyers.

Although old, this ruling remains relevant for property transactions involving communes of fewer than 9,000 inhabitants. It sets a simple rule: when the sale price is below a certain threshold (60,000 francs at the time, i.e. approximately €9,147), the commune does not need prefectoral approval. Consequently, the promise to sell may be perfected and bind the commune. But beware, the conditions must be strictly met. Analysis.

The facts: a story that happens every day

We are at the end of the 1950s. Mr. Cazale, a private individual, wishes to acquire a plot of land belonging to the commune of a small town in Isère (one can imagine a commune like Meylan, which then had fewer than 9,000 inhabitants). In 1959, the municipal council deliberated and authorised the mayor to sell the plot to Mr. Cazale at a price of 0.50 francs per square metre. The mayor signed a promise to sell.

But then: the prefect, exercising his supervisory control over communes, refused to approve the deliberation. Why? Because the price seemed too low: a subsequent expert valuation would estimate the value of the plot at between 4 and 5 francs per square metre. The commune, relying on this refusal, considered that it was no longer bound by the promise. Mr. Cazale, for his part, argued that the sale was perfected and that the commune must perform it.

The dispute went up to the Court of Cassation. On the way, the Grenoble Court of Appeal ruled in favour of Mr. Cazale, holding that the promise to sell was valid and bound the commune. The commune appealed to the Court of Cassation, arguing that the mayor did not have the power to sell without prefectoral approval, and that the Court of Appeal had contradicted itself. The Court of Cassation dismissed the appeal: the promise to sell was indeed binding.

The reasoning of the court — explained

To understand the ruling, one must delve into the law applicable to communes at the time. Article 47 of the Code of Communal Administration (now codified in the General Code of Local Authorities) required communes of fewer than 9,000 inhabitants to submit their projects for the sale of communal property to the prefectoral authority when the price was lower than that resulting from an expert valuation. In other words, if the proposed price was lower than an expert's estimate, the commune had to seek the prefect's opinion.

But an order of 1 September 1955 had relaxed this rule: it exempted communes from this obligation when the sale price did not exceed 60,000 francs (approximately €9,147). In short, for small sales, no need for prefectoral approval.

In our case, the price set for the plot was 0.50 francs per square metre. What was the area of the plot? The ruling does not say, but for the total price to be less than 60,000 francs, the area could not exceed 120,000 m² (i.e. 12 hectares), which is plausible for a communal plot. The Court of Appeal therefore held that the price was below the threshold of the 1955 order, and consequently, the commune did not need prefectoral approval. Therefore, the promise to sell, which concerned a thing (the plot) and a determined price, constituted a perfected sale. The commune was therefore bound.

The commune's appeal raised several grounds, including a contradiction: the Court of Appeal would have, on the one hand, acknowledged that the expert valuation had assessed the plot at 4 or 5 francs per m², and on the other hand, held that the price of 0.50 francs was valid without prefectoral control. But the Court of Cassation dismissed the argument: since the total price did not exceed 60,000 francs, the 1955 order applied, regardless of the real value of the plot. There was no contradiction.

What few people know is that this decision is part of a logic of protecting the bona fide buyer. The mayor, by signing the promise, had the power to do so (the municipal council had authorised him). The prefectoral refusal was not an obstacle since the exemption applied. The commune could not therefore go back on its word.

What this changes for you — concretely

You own land in Fontaine or Meylan and want to buy it from the commune? Or you are a commune of fewer than 9,000 inhabitants and you wish to sell a plot? This ruling concerns you directly. In practice, it means that:

• For the buyer: if you obtain a promise to sell from the mayor, for a communal plot, at a price below €9,147 (2024 value, indexed for inflation), the commune cannot withdraw by invoking a lack of prefectoral approval. Your promise is valid and you can demand the sale. If the commune refuses, you can bring the matter before the judicial court to have the perfected sale declared.
• For the commune: beware: a promise to sell signed by the mayor, even without prefectoral control, may bind you definitively. Before signing, check that the price is indeed below the legal threshold (which has been revalued since: today, the threshold is set by order, but the logic remains the same). If the price exceeds the threshold, you must imperatively obtain the prefect's approval, failing which the promise could be void.
• For the notary: when selling a communal asset, he must check whether the price is below the threshold for exemption from prefectoral control. If so, the sale can be concluded without waiting for the prefect's opinion. Otherwise, it is necessary to defer until approval.

In other words, this decision secures small property transactions between individuals and communes. But beware: the 60,000 franc threshold of 1974 has been updated. Currently, for communes of fewer than 2,000 inhabitants, the threshold for exemption from legality control is €150,000 for sales (Articles L. 2131-1 et seq. of the CGCT). For communes with 2,000 to 9,000 inhabitants, the threshold is €100,000. It is therefore necessary to check the texts in force.

Four tips to avoid this type of dispute

To avoid finding yourself in the situation of Mr. Cazale or the commune, here are some practical tips:

• Check the municipal council deliberation: before signing a promise to sell with a commune, ensure that the municipal council has indeed authorised the mayor to sell the property. This authorisation must be prior and specific (it must designate the property and the price). Without this, the promise is void.
• Consult the thresholds for prefectoral control: find out the amount below which the commune is exempt from prefectoral approval. This threshold varies according to the size of the commune and the time. In case of doubt, ask the notary or a specialised lawyer.
• Require a precise written document: the promise to sell must mention the price, the thing (precise description of the plot) and any suspensive conditions. A verbal agreement or a simple letter of intent could be challenged.
• In case of prefectoral refusal, do not give up: if the price is below the exemption threshold, the prefect's refusal is unenforceable. You can proceed and demand the sale. If the commune resists, bring the matter before the judicial court to have the perfected sale recognised.

Further analysis: related case law and developments

The 1974 ruling is part of a consistent line of case law: the Court of Cassation protects the bona fide buyer of a communal asset when the mayor has complied with the formalities. One may cite a ruling of 20 October 1971 (No. 70-10.123) which had already held that the lack of prefectoral approval did not affect the validity of the promise if the sale was exempt from this control.

Since then, the law has evolved: the 1982 decentralisation abolished the prefectoral supervision over acts of communes, replaced by an a posteriori legality control. Now, municipal council deliberations are enforceable as of right after transmission to the prefect, but without prior approval. However, for certain sales, prefectoral authorisation remains necessary (for example, for assets in the public domain).

The trend of the courts is to favour the security of transactions: once agreement on the thing and the price has been reached, the commune can no longer unilaterally withdraw. This is an application of the general principle of contract law: 'an offer to sell constitutes consent'. undefined, I have encountered cases where communes tried to renege on a promise after a rise in the property market. This ruling reminds them that one's word is binding.

In practice: what to do

Here is a 5-point checklist if you are in a similar situation:

1. Obtain a copy of the municipal council deliberation authorising the sale. Check that it is regular (date, quorum, signature).
2. Check the sale price against the threshold for exemption from prefectoral control applicable at the date of the promise. If the price is below, the promise is valid without approval.
3. Have the agreement on the thing and price recorded in a written document signed by the mayor. Keep all correspondence (letters, emails).
4. If the commune refuses to perform, put it on notice by registered letter with acknowledgement of receipt. Set a deadline of 15 days.
5. Bring the matter before the judicial court to have the perfected sale declared. You may claim damages if the commune acted in bad faith.

In summary, this 1974 ruling is a valuable weapon for buyers of communal plots. It reminds us that the law protects those who have concluded a clear and fair agreement. But beware: each situation is unique, and the rules have evolved. Before acting, consult a lawyer specialised in property law.

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 →