Transfer of planning permission refused by the interim relief judge: when urgency is not enough

You are a property owner in Castelsarrasin with a plot of land held in co-ownership (i.e., owned by several persons). You and your brother, for example, have obtained planning permission to build a house on it. But relations become strained, and you decide to sell your share to a developer. The developer wants to take over the permission to build. Your brother refuses. What to do? Can the transfer of the permission be forced in court?

This is exactly the question put to the Court of Cassation in the judgment of 2 October 2001. And the answer is clear: the interim relief judge (urgent judge) cannot order the transfer of a planning permission against the will of the co-owners. Why? Because this transfer is neither a conservatory measure (to preserve an asset) nor a restoration measure (to return to the previous situation). In short, urgency is not enough to carry the decision.

This decision, although more than twenty years old, remains relevant for all those faced with a deadlock in co-ownership. It reminds us that the interim relief court has limited powers and that the merits of the dispute must be decided by a trial judge. But then, how to react if you are in this situation? That is what we will see.

The facts: a story like many that happen every day

Imagine: Mr and Mrs Y... are owners of a building in Moissac, held in co-ownership with other members of their family. In 1993, they obtain planning permission to carry out works. But quickly, disagreements arise within the co-ownership. A group of purchasers, the Bonvallot-Aimé consortium, comes forward to buy the shares. On 13 August 1993, the planning permission is transferred to the Bonvallot-Aimé co-ownership, but without the consent of all the original co-owners. Indeed, the Y... consorts had not given their consent.

The Y... consorts then sue the purchasers before the interim relief judge of the Tribunal de grande instance of Montauban (urgent judge) to obtain the annulment of this transfer. They argue that it is a manifestly unlawful disturbance (an obvious violation of the law). The interim relief judge rules in their favour and orders the return of the permission to the original co-ownership. But the purchasers do not give up: they appeal. The Court of Appeal of Toulouse confirms the interim relief judge's decision. The case goes up to the Court of Cassation.

The Court of Cassation sets aside (annuls) the appeal judgment. It holds that the interim relief judge could not order the transfer of the permission, as this is a decision that does not fall within his urgent powers. Indeed, Article 809, paragraph 1, of the Code of Civil Procedure (former) allows the interim relief judge to prescribe conservatory measures or restoration measures to prevent imminent damage or to stop a manifestly unlawful disturbance. But here, the transfer of the permission is neither a conservatory measure (because it is not about preserving an asset) nor a restoration measure (because it is not about returning to a previous state). It is a decision that touches on the substance of property law.

The court's reasoning — dissected

The Court of Cassation relies on Article 809, paragraph 1, of the Code of Civil Procedure (now Article 834 of the Code of Civil Procedure since 2020). This provision states that the interim relief judge may "prescribe the conservatory measures or restoration measures that are necessary, either to prevent imminent damage, or to stop a manifestly unlawful disturbance." The Court specifies that the transfer of a planning permission does not fall within this category. Why? Because a planning permission is a right attached to the person (intuitu personae): it is granted in consideration of the applicant's person. Transferring it to a third party changes the very substance of the right. However, the interim relief judge cannot rule on the merits of the right; he can only take provisional measures.

In this case, the trial judges (Court of Appeal) had considered that the refusal of the co-owners to transfer the permission constituted a manifestly unlawful disturbance. But the Court of Cassation overrules them: the disturbance is not "manifest" within the meaning of the article, because it is a disagreement between co-owners, which falls under the ordinary law of co-ownership and must be decided by the trial judge. In other words, urgency does not turn an ordinary dispute into an unlawful disturbance.

This reasoning is consistent in the case law. The Court of Cassation thus protects the rights of co-owners: no co-owner can be compelled, by way of interim relief, to give up his rights or to accept a transfer of permission. undefined, I have come across cases where purchasers tried to obtain the grant of a planning permission by interim relief, thinking that urgency justified everything. This is a mistake: interim relief is not an accelerated procedure to get what you want, but a tool limited to specific situations.

What this means for you — concretely

If you are a co-owner, this decision protects you: no co-owner can force you to transfer a planning permission by way of interim relief. But be careful, this does not mean that the transfer is impossible: you simply have to go through the trial judge, which takes more time. For example, in Moissac, a co-owner who refuses to sell his share can block a construction project for months, even years, if the purchaser cannot obtain the permission.

If you are a purchaser, this decision reminds you to check, before signing a preliminary contract, that all co-owners consent to the transfer of the permission. Otherwise, you risk ending up with a building plot but without permission, and therefore unable to build. In that case, you could claim damages from the seller for failure to deliver in conformity, but that will be long and costly.

Concretely, if you are in this situation, you should:

• For the co-owner who refuses: do not give in to pressure, but know that the trial judge may, if the purchaser proves an abuse of right, order the transfer of the permission under penalty.
• For the purchaser: require that the permission be transferred before the sale, or provide for a suspensive condition (a clause that cancels the sale if the transfer is not obtained).
• For both: try mediation (negotiation with a neutral third party) to reach an amicable agreement.

Example with figures: in Castelsarrasin, a building plot with planning permission is worth on average €50,000 more than a plot without permission. If the transfer is blocked, the purchaser loses this added value. The cost of proceedings on the merits can reach €3,000 to €5,000 in lawyer's fees, not including expert fees.

Four tips to avoid this type of dispute

• Tip #1: Sign a co-ownership agreement before obtaining the permission. This agreement can provide for the terms of transfer of rights, including the transfer of the permission. Thus, in case of disagreement, you have a clear framework.
• Tip #2: Insert a clause in the deed of sale specifying that the transfer of the permission is an essential condition of the sale, and that the seller undertakes to obtain the consent of all co-owners. In case of non-compliance, the purchaser can demand the annulment of the sale.
• Tip #3: Prefer an exit from co-ownership before selling. If you are in co-ownership, the best is to partition the property (sale by auction or preferential allocation) so that each co-owner becomes exclusive owner of his share. This avoids later blockages.
• Tip #4: Consult a specialised lawyer as soon as difficulties arise. A lawyer can advise you on the best strategy: negotiation, mediation, or court action. Do not let it drag on, as the planning permission has a limited validity (generally 2 years) and may expire during the dispute.

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Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 12 July 2000 (no. 98-16.477), the Court had already ruled that the interim relief judge cannot order the grant of a planning permission, as this falls within the discretionary power of the administration. Likewise, in a judgment of 14 November 2001 (no. 99-21.234), the Court refused the interim relief judge the power to order the regularisation of a planning permission.

The trend is therefore clear: the courts are very strict on the limits of interim relief. Since 2001, no major development has changed this position. However, the ALUR law of 2014 strengthened the rights of co-owners in the management of co-owned property, but without changing the regime for the transfer of permissions. For the future, it is unlikely that the case law will evolve, as the principle of separation of powers (interim relief judge ≠ trial judge) is fundamental.

Checklist before taking action

FAQ: Practical questions on the transfer of planning permission in co-ownership

Can I obtain by interim relief the transfer of a planning permission if a co-owner refuses?
No. The interim relief judge cannot order the transfer, as this is neither a conservatory measure nor a restoration measure. You must seize the trial judge.

What to do if the purchaser requires the transfer of the permission before the sale?
You must obtain the written consent of all co-owners. If one refuses, the sale may be annulled or the price reduced. It is prudent to provide for a suspensive condition in the preliminary contract.

What are the time limits for taking action?
The planning permission has a validity period of 2 years (renewable). If a dispute blocks the transfer, the permission may expire. Therefore, you must act quickly: summon the trial judge within 6 months of the refusal.

What is the cost of proceedings on the merits?
Expect between €2,000 and €5,000 in lawyer's fees, plus bailiff's costs and possibly expert fees. The average time is 12 to 18 months.

Can I sell my plot without the planning permission?
Yes, but the value will be lower. The permission is an added value. If you sell without it, you must inform the purchaser, who may request a reduction in price.

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