Managing Agent Criminally Liable: What Duty to Supervise Works?

Imagine: you are the managing agent of a condominium in Tours, a lovely residence near the cathedral. The co-owners vote for raising the building to create two new flats. You sign a contract with a contractor and an architect, you think you are safe. Yet, a few months later, a dissatisfied neighbour reports to the town hall that the works exceed the height allowed by the building permit. The municipal police note the infringement. And then, surprise: it is you, the managing agent, who is prosecuted criminally. Unfair, isn't it?

However, the Court of Cassation, in a judgment of 3 May 1978, ruled: the managing agent has a personal duty to ensure compliance with the building permit. He cannot hide behind the fault of the contractor or the architect. This decision, still relevant today, makes more than one managing agent tremble. But what exactly does this judgment say? What are its practical implications for condominiums, managing agents, and even owners? Let's dive into this story.

This article explains to you, step by step, the reasoning of the judges, the practical consequences and above all the precautions to take to avoid finding yourself before the criminal court. Whether you are a volunteer managing agent of a small condominium in Loches or a professional managing agent in Paris, the rules are the same.

The facts: a story like those that happen every day

We are in the 1970s. A condominium obtains a building permit to carry out extension works. The professional managing agent entrusts the execution to a contractor and the direction of the works to an architect. Everything seems under control. But then: the works do not comply with the permit requirements. Perhaps the height is exceeded, or the footprint is larger than planned. In any case, the infringement is noted.

The managing agent is prosecuted for infringement of the Town Planning Code (Article L. 480-4, which punishes constructions without a permit or non-compliant constructions). Before the criminal court, he defends himself: "It wasn't me who built; I delegated to competent professionals. I couldn't be on site every day."

But the judges do not see it that way. They convict him, holding that he had a duty to personally check compliance with the permit. The managing agent appeals to the Court of Cassation. The Court of Cassation, by this judgment of 3 May 1978 (No. 77-92.020), dismisses his appeal and upholds the conviction. It holds that the court of appeal justified its decision by finding that the managing agent, charged with carrying out the works on behalf of the condominium, did not personally ensure compliance with the building permit obligations. In other words, the managing agent cannot hide behind the architect or the contractor.

The reasoning of the court — broken down

To understand this judgment, you must first know the legal basis of the offence. Article L. 480-4 of the Town Planning Code (in the version then applicable) punishes by a fine and sometimes imprisonment the execution of works without a permit or in violation of the permit. But who is criminally liable? The person who "causes the works to be executed". In a condominium, it is the managing agent who is mandated by the general meeting to have the works carried out. He is therefore the "project owner" in the criminal sense, even if he is not the owner of the walls.

The Court of Cassation recalls that the managing agent has a personal duty of supervision. He cannot simply sign a contract with a contractor and an architect and rely on them. He must, concretely, verify that the building permit directives are respected. How? By staying in contact with the architect, drawing his attention to sensitive points, ensuring that the plans are followed. If he neglects this supervision, he commits a criminal fault.

The judgment thus specifies: "the managing agent had the duty to ensure that the building permit directives were respected, if only by staying in contact with the architect, drawing his attention to the requirements." In other words, the managing agent must be proactive. He cannot be passive and wait for the professionals to do their work without control.

This decision is part of a broader trend of making project owners responsible. It is often cited by courts to remind that delegation to a professional does not erase personal responsibility. This is constant case law, still applied today.

What this changes for you — concretely

For professional managing agents, this decision means that they must integrate the supervision of works into their mission. A simple schedule follow-up is not enough. They must, for example, obtain the execution plans, check the main dimensions on site, or require certificates of conformity from the architect during the works. If they do not, they risk criminal conviction: a fine of up to €300,000 and imprisonment (rare for a managing agent, but possible).

For co-owners, this case law is a double-edged sword. On the one hand, it guarantees that the managing agent cannot pass the buck to the professionals. On the other, if the managing agent is convicted, the condominium will often have to bear the financial consequences (e.g., remedial works). An example: in Loches, a condominium had to pay €15,000 to demolish a floor built without respecting the permit. The managing agent had a delegation from the architect. But the court held that the managing agent should have checked that the architect respected the authorised heights.

For landlord owners, beware: if you entrust management to an agent, you are not immune. As a co-owner, you could be held jointly liable for fines if the infringement relates to your unit. Better to choose a rigorous managing agent and demand progress reports on the works.

Four tips to avoid this type of dispute

• Require a precise control plan. As soon as the quote is accepted, ask the architect or project manager for a schedule of mandatory control points (height, footprint, materials). The managing agent must validate each step in writing.
• Organise regular site visits. The managing agent, or a trained representative, must go on site at least once a week during critical phases. Take dated photos and a signed report.
• Involve an independent inspection office. For major works (over €50,000), mandatory technical inspection helps secure compliance. The managing agent must check the reports.
• Keep all authorisations and correspondence. In case of a dispute, having proof that you alerted the architect to non-compliance can relieve you of criminal liability. Keep emails, registered letters, reports.

Further reading: related case law and developments

This 1978 decision has been confirmed several times. For example, the Court of Cassation ruled in 2012 (No. 11-83.704) that a managing agent could be convicted for allowing his contractor to carry out works not conforming to the permit, even if the architect had given oral consent. The judges insisted that the managing agent must ensure that modifications are authorised by an amending permit.

More recently, in 2020, the Criminal Chamber recalled that the managing agent is personally liable for offences committed during the works, even if he delegated supervision to a design office. Delegation of authority is not admitted in criminal matters for the managing agent, because his duty of supervision is personal and non-delegable.

The current trend is therefore towards a strengthening of managing agents' liability. Courts are increasingly less lenient, especially when the works impact the neighbourhood or the environment. In the future, it is likely that managing agents will have to demonstrate specific training in town planning to practise.

In practice: what to do

If you are a managing agent and works are in progress:

• Check that the building permit is displayed on site (mandatory).
• Ensure the execution plans comply with the permit.
• Require a monthly report from the architect on compliance.
• If in doubt, suspend the works and apply for an amending permit.

If you are a co-owner and works have been voted:

• Ask the managing agent to provide you with the permit and plans.
• Require the managing agent to report on the checks carried out.
• If you notice an anomaly, report it in writing to the managing agent and the town hall.

Frequently asked questions:

• Can a managing agent delegate supervision to a third party? No, not criminally. He remains liable, even if he hires a control office.
• What is the limitation period for a town planning offence? 6 years from completion of the works.
• What does a managing agent concretely risk? Fine up to €300,000, obligation to demolish, and sometimes imprisonment (rare).
• Is the volunteer managing agent exposed? Yes, exactly like a professional.

You find yourself 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 →