Transferred Planning Permission: Obligation of Means or Result?

Imagine: you buy a plot of land in Aniche with the promise that the seller will transfer to you the planning permission already obtained. You start the works, but a neighbour commits infringements, and the administration blocks the amendment permission for years. Who is at fault? This question is asked by thousands of purchasers every year. The answer from the Court of Cassation, delivered on 28 April 1993, is a classic that sheds light on the rights and obligations of each party.

In short, the high court held that the seller of a plot in a housing development has only an obligation of means (he must do everything to obtain the transfer, but without guarantee of success) to have the planning permission transferred. The purchaser, who had suffered a delay of several years, was unsuccessful because he did not prove any fault on the part of the seller. This decision, still relevant today, reminds us that the administration retains control over the permission.

Whether you are a seller or a purchaser, this case law directly concerns you. Let us break it down together.

The Facts: A Story That Happens Every Day

In 1982, the company Immoser obtained a planning permission for an entire housing development located near Sin-le-Noble. It then sold, on 14 November 1983, a plot to Mr X. The deed of sale stipulated that "the seller undertakes to have the benefit of the planning permission transferred to the purchaser, in respect of the right to build on the plot the subject hereof" and that "from the date of signature, the purchaser is authorised to exploit the permission". Mr X therefore began construction in full confidence.

But another co-purchaser (a buyer of another plot in the development) committed infringements of the original permission. The administration then required an amendment permission for the entire development. Immoser filed the application, but the processing dragged on. It was only several years later that the amendment permission was finally granted. In the meantime, Mr X had not been able to complete his construction as planned. He sued Immoser for damages, claiming that the company had not fulfilled its undertaking to transfer the permission.

The Aix-en-Provence Court of Appeal dismissed his claim on 9 May 1990. Mr X appealed to the Court of Cassation. The Court of Cassation dismissed his appeal on 28 April 1993, upholding the appeal judgment.

The Reasoning of the Court — Analysed

The core of the dispute concerned the nature of Immoser's obligation: was it an obligation of result (it must obtain the transfer, regardless of obstacles) or an obligation of means (it must do everything possible, but without guarantee)? The Court of Cassation ruled: it is an obligation of means. Why? Because the transfer of the planning permission depends on a decision of the administrative authority, over which the seller has no absolute control.

The legal basis is Article 1240 of the Civil Code (formerly 1382), which establishes the principle of liability for fault: "Any act of a person which causes damage to another obliges the person through whose fault it occurred to make reparation." For the purchaser to obtain damages, he must prove a fault by the seller, damage, and a causal link.

In this case, the Court of Appeal found that Immoser had indeed filed the application for an amendment permission, and that the delay was due to the administration and the infringements of a third party (the other co-purchaser). No fault was established against the seller. The Court of Cassation approved this reasoning: the seller does not have to guarantee a result that the administration may legitimately block.

This decision is neither a reversal nor a major development: it applies a classic distinction between obligations of means and obligations of result. It confirms that, in contractual relations, the administrative risk falls on the purchaser, unless a very clear clause provides otherwise.

What This Means for You — Practically

For a seller-owner: your obligation to have a planning permission transferred is limited. You must act diligently, but you are not responsible for the administration's slowness. To protect yourself, keep proof of your steps (letters, acknowledgements of receipt). Avoid promising a specific deadline.

For a purchaser: you take a risk. If you buy land with a promise of a permit transfer, know that the seller is not your insurer. Demand additional guarantees: a clause providing for penalties in case of delay due to his negligence, or a deadline with the possibility of rescission of the sale. For example, in Sin-le-Noble, a purchaser lost 2 years of potential rent because the amendment permission was initially refused; without a specific clause, he could recover nothing.

For a professional developer: this case law supports you, but it does not exclude your liability if you are negligent. If you fail to file the application, or if you provide incorrect documents, you commit a fault. The decision does not give you a blank cheque.

Four Tips to Avoid This Type of Dispute

• Draft a precise clause in the deed of sale: clearly distinguish the seller's obligations (filing the application, following the processing) and the risks borne by the purchaser (administrative delays).
• Require an indicative timetable: even if non-contractual, it allows you to monitor progress and react in case of abnormal delay.
• Keep all proof of your steps: registered letters, emails, meeting minutes. In case of dispute, you must prove your diligence.
• Anticipate appeals: if the administration blocks the permit, the seller should be able to bring an administrative appeal or judicial review. Include a clause requiring him to do so, at the purchaser's expense.

Further Insight: Related Case Law and Developments

This decision is part of a consistent line: the Court of Cassation considers that obligations relating to obtaining administrative authorisations are, unless otherwise stipulated, obligations of means (Civ. 3e, 14 March 1990, No. 88-17.234). Conversely, if the seller undertakes to deliver property that complies with a permit already obtained, the obligation may be one of result (Civ. 3e, 10 June 1992, No. 90-18.820). The nuance is subtle but crucial.

Courts are increasingly demanding on the drafting of clauses. A simple mention "the seller undertakes to have the permit transferred" is now interpreted as an obligation of means, unless the contract specifies "the seller guarantees the obtaining of the transfer before [date]". The future may see a trend towards greater protection of the non-professional purchaser, but for now, the rule remains that of 1993.

Summary and Next Steps

FAQ:

• Can I cancel the sale if the permit is not transferred within the time limit? Only if the contract provides for a resolutory condition or a strict deadline clause. Without this, you can only claim damages if you prove a fault by the seller.
• What if the seller does not even file the application? That is a clear fault. You can sue for specific performance (the court may order the filing under penalty) and for damages.
• Should I suspend the works while waiting for the transfer? Yes, because building without a valid permit exposes you to criminal penalties (fine, stop-work order). Better to wait.
• Can I take action against the administration for delay? Yes, by way of judicial review or a claim for compensation for defective functioning of the public service. But it is lengthy.
• What is the cost of a consultation on this matter? A first analysis of your contract by a specialist lawyer costs between €150 and €300. It is an investment that can save you years of proceedings.

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 →