Restoration of Premises: A Double Penalty Possible for Illegal Constructions

You are a property owner in Lodève, and your neighbour has built an extension without planning permission, obstructing your view of the valley. You have filed a complaint, the public prosecutor has pursued the matter, and the court has ordered demolition under the public action. But can you also claim restoration as compensation for your loss? Until now, some judges considered that you could not, because the measure had already been ordered in criminal proceedings. The Court of Cassation has now ruled: it is possible.

This decision of 8 December 2020 (appeal no. 19-84.245) is a minor revolution for neighbours harmed by illegal constructions. It recalls that the same measure – restoration – may be ordered cumulatively under public (criminal) action and under civil (compensatory) action. In clear terms, you can not only obtain an order from the criminal judge for demolition, but also have that demolition granted to you as compensation for your personal loss.

But what exactly does this change? And how can you assert your rights? Let us delve into the facts and the judges' reasoning.

The Facts: A Story That Happens Every Day

The case began in the Alpes-de-Haute-Provence, but it could just as easily have taken place in Frontignan or Lodève. A property owner, Mr. O., carried out works without planning permission on his land, in violation of the local planning scheme (PLU). Worse still, he used fraudulent means to deceive the planning authorities. The facts were discovered, and he was criminally prosecuted for carrying out works without a permit and violating the PLU.

At the same time, a civil party – likely a neighbour or an association – intervened and sought, in addition to the criminal prosecution, the restoration of the premises as compensation for its loss. The Aix-en-Provence Court of Appeal (chamber 5-2, 25 March 2019) rejected this request, holding that since restoration had already been ordered under the public action, there was no need to grant it again under the civil action.

The civil party appealed to the Court of Cassation. It argued that restoration could be sought as a real measure intended to bring an unlawful situation to an end, but also as compensation for the loss suffered. And that nothing in the planning code prohibited the cumulative application.

The Reasoning of the Court — Analysed

The Court of Cassation quashed the appeal judgment. It recalled that "a measure of restoration of premises may be sought as a real measure intended to bring an unlawful situation to an end, but also as compensation for the loss suffered by a civil party". And that "no provision of the planning code prevents restoration being ordered cumulatively under the public action and under the civil action".

In other words, restoration has two functions: a policing function (to bring the illegality to an end) and a compensatory function (to remedy the victim's loss). These two functions can coexist. The appeal court was therefore wrong to refuse the request solely because the measure had already been ordered in criminal proceedings.

The lower courts should have responded to the civil party's submissions and examined whether restoration was justified as compensation for its loss. Note, however, that this does not mean the civil party automatically obtains a double demolition; it obtains the same measure, but recognised as compensation for its loss, which may have consequences for compensation or enforcement deadlines.

What This Changes for You — Concretely

For the owner-landlord or occupant: If you suffer direct loss from an illegal construction (loss of view, shade, diminution in value of your property), you can now claim restoration as civil compensation, even if the criminal judge has already ordered it. This strengthens your position.

For the buyer of a property: Before purchasing, check that constructions comply with planning permission. If a defect appears after the sale, you can take action against the seller for non-conformity and claim restoration.

For the co-owner: Suppose in Frontignan, a co-owner builds a veranda without authorisation, encroaching on the common parts. The management company can take criminal action, but each injured co-owner can also claim restoration as a civil remedy.

Concretely, if you are in this situation, you must: 1) intervene as a civil party in the criminal proceedings; 2) make an express request for restoration as compensation; 3) demonstrate your personal loss (for example, a loss in value of your property estimated at €15,000).

Four Tips to Avoid This Type of Dispute

• Before any property purchase, have an urban planning diagnostic carried out by a professional (lawyer or consultancy firm) to verify compliance of constructions with the PLU and permits.
• If you are building, obtain all necessary permits before starting work and scrupulously comply with the requirements. A modified permit can be obtained during the works if necessary.
• In the event of a neighbourhood dispute, first try conciliation (for example, via the justice conciliator) before embarking on often lengthy and costly court proceedings.
• Keep all evidence: before/after photos, bailiff's reports, correspondence, planning permissions, etc. These will be essential to demonstrate the prior state of your situation and the loss.

Further Reading: Related Case Law and Developments

This decision is part of a broader trend by the Court of Cassation to strengthen the rights of victims of planning offences. Already, in a judgment of 15 June 2016 (no. 15-83.547), the Court had held that restoration could be ordered even if the works were compliant with the PLU at the time of judgment. Here, it goes further by clarifying the cumulative actions.

On the other hand, the Court of Cassation recalled in a judgment of 13 February 2019 (no. 18-80.246) that the limitation period for public prosecution (3 years for planning offences) also applies to the civil action when it is accessory. Hence the importance of acting quickly.

What this means for the future: lower courts will now have to systematically examine requests for restoration from civil parties, even if an identical measure has been ordered in criminal proceedings. This could speed up the enforcement of demolitions and better compensate victims.

In Practice: What to Do

FAQ:

1. Can I claim restoration if I am simply a neighbour? Yes, if you can show a personal and direct loss (loss of view, nuisance, diminution in value).
2. What are the time limits for acting? The public prosecution is time-barred after 3 years from the discovery of the works. The civil action can be brought up to 10 years after the damage, but it is prudent to act promptly.
3. What is the cost of proceedings? Allow between €1,500 and €5,000 in lawyers' fees depending on complexity, plus any expert fees (€500 to €2,000).
4. What if the judgment orders demolition but the neighbour refuses? You can request enforcement with the help of a bailiff. The judge may also attach a periodic penalty payment (e.g., €100 per day of delay).

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 →