Reference decision: cc • No. 16-87.178 • 2017-10-24 • View decision →
Imagine the scene: you own a plot of land in Le Cannet, classified as non-building land by the local planning scheme (PLU). You lease it to a public works company which stores containers and materials there. One day, you receive a summons to the criminal court for unlawful construction. "But it wasn't me who did the work!" you exclaim. Yet the law may hold you responsible. This is exactly what the Court of Cassation reminded us in a judgment of 24 October 2017 (No. 16-87.178).
This decision is crucial for all landlord property owners, particularly in high-demand areas like Sophia-Antipolis or Le Cannet, where land pressure is high and leases of bare land are common. It raises a simple question: how far does the owner's liability extend when their tenant breaches the planning code? The answer is clear: the landlord cannot hide behind the tenant's fault if they had the contractual means to prevent it.
In this article, we will dissect this case, understand the judges' reasoning, and above all give you practical keys to avoid finding yourself in the same situation. Because once a conviction is pronounced, it is often too late: fine, restoration of the premises at your expense, and sometimes even a suspended prison sentence.
The facts: a story that happens every day
Mr X owns a plot of land classified as non-building land by the local land use plan (POS). To generate income, he leases this bare land to several public works and transport companies. They store containers, construction machinery and various materials there. However, this activity is completely incompatible with the classification of the plot, which is intended for agriculture or nature conservation.
The public prosecutor's office prosecutes Mr X for breach of the planning code: construction or installation without a permit, and damage to a protected natural area. At first instance, the criminal court sentences him to a fine and orders the restoration of the site, i.e. the removal of all containers and materials. Mr X appeals, arguing that he is not the person who carried out the installations: his tenants acted alone, without his consent.
The Court of Appeal upholds the conviction. Mr X then appeals to the Court of Cassation. He argues that his mere status as landlord property owner is not enough to incur criminal liability: he must have personally participated in the offence. The Court of Cassation dismisses his appeal and validates the lower courts' reasoning. A twist that changes the game for all landlords.
The court's reasoning — dissected
To understand the decision, we must look at the legal basis of the owner's criminal liability. In French law, a planning offence (for example, building without a permit) can be attributed to any person who has "the status of project manager, owner or operator". But case law generally requires a mental element: intention or at least negligence.
Here, does the Court of Cassation innovate? No, it applies an already established solution: the owner who knows the regulations and has the contractual power to enforce the rules can be convicted even if they did not personally store the containers. In other words, the landlord is considered the "true beneficiary" of the operation, because they receive rent and set the legal framework of the leases. They cannot therefore exonerate themselves by shifting the blame onto their tenants.
Specifically, the Court of Appeal noted that Mr X had entered into several lease agreements for the bare land, and that these leases contained clauses allowing him to require compliance with planning rules. For example, he could prohibit any deposit or construction without his prior consent, or terminate the lease in case of non-compliance. By not using these powers, he committed gross negligence. The judges therefore considered that he had "allowed it to happen" and was an accomplice by omission.
What few people know is that this solution also applies to unauthorised works, deforestation or classified installations. undefined, I have come across cases where owners in Sophia-Antipolis were convicted for leasing sheds without permits to start-ups that converted them into offices.
What this means for you — practically
This decision has direct implications for several profiles. If you are a landlord property owner of land or premises, you must imperatively check that your tenant complies with planning rules. In case of infringement, you risk a criminal fine (up to €300,000 and 2 years imprisonment for unlawful constructions), and above all restoration of the site at your expense. The cost of demolition or removal can reach several tens of thousands of euros.
For tenants, this is a strong signal: the owner may be tempted to turn against you by an action for contractual liability, but the courts consider that they have a duty of vigilance. Beware however: if you are a tenant and commit an offence, you will also be prosecuted criminally.
As a purchaser of land, check the state of the premises before purchase. If unlawful constructions exist, you could inherit the restoration procedure. A concrete example: in Le Cannet, a plot leased to a transport company for storage had to be restored at a cost of €45,000, whereas the landlord had received only €12,000 in rent.
If you are in this situation, you must act quickly: send a formal notice to the tenant, then apply to the court to stop the disturbance. Do not wait for the authorities to prosecute you.
Four tips to avoid this type of dispute
- Check the PLU before leasing bare land. Verify the planning rules applicable to the plot. If it is in a natural or agricultural zone, prohibit any deposit or construction in the lease.
- Insert a clause requiring compliance with planning rules in the lease. Provide that the tenant undertakes not to carry out any works without your written consent, and that any breach results in automatic termination.
- Carry out regular inspections of the land. At least once a year, to check that the tenant is complying with their obligations. If you notice an infringement, send them a formal notice immediately by registered letter.
- Do not remain passive. If the tenant refuses to rectify the situation, start interim proceedings to stop the disturbance. Your inaction exposes you to criminal prosecution.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further reading: related case law and developments
This judgment is part of a consistent trend by the Court of Cassation to strengthen the owner's liability in planning matters. Already in 2013 (Crim., 19 March 2013, No. 12-80.942), the Criminal Division had ruled that the owner of land could be convicted for an offence committed by their tenant if they knew about the works and did not oppose them.
However, there was a divergence with some Courts of Appeal that required active participation. Here, the Court of Cassation clarifies: mere omission is enough if the owner had the power to act. This solution is now well established.
For the future, we can expect judges to be even more demanding: they might consider that the landlord has a duty of active supervision, even without an express clause. Hence the importance of documenting your actions.
Key points to remember
FAQ:
Q: Can I be criminally convicted for offences committed by my tenant?
A: Yes, if you knew the planning rules and had the contractual power to enforce them. Your inaction is considered culpable negligence.
Q: What should I do if my tenant deposits materials on non-building land?
A: Send them a formal notice to remove everything within 15 days, under penalty of termination of the lease. If nothing happens, apply to the judicial court for interim relief.
Q: What are the financial risks?
A: In addition to the criminal fine (up to €300,000), you will have to pay for the restoration of the site, which can cost several thousand euros. Moreover, your public liability insurance does not cover intentional offences.
Q: Does this decision apply to commercial or residential leases?
A: Yes, for any type of lease, as long as the owner has control over the premises. For housing, the landlord may be liable for unauthorised alterations by the tenant.
Q: Can I claim against my tenant for reimbursement of costs?
A: Yes, you can sue them for contractual liability for breach of the lease. But beware: if you have been criminally convicted, your fault may reduce your compensation.
Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →
