Residential Use as of 1 January 1970: Subsequent Evidence of Use Is Inoperative

Imagine: you have just acquired a small commercial premises in Issoire, rue de la République, with the intention of converting it into a rental flat. Everything seems in order: the seller tells you that the premises has been used as a dwelling for years, and you even have photos of the former tenants. Yet, the town hall refuses your change of use application, arguing that the premises was in commercial use as of 1 January 1970. You wonder: on what basis is this decision made?

The question is crucial for any owner wishing to convert a premises into a dwelling: what date should be used to prove residential use? The answer of the Court of Cassation, in its judgment of 28 May 2020 (No. 18-26.366), is final: only use as of 1 January 1970 counts. Subsequent use, even if prolonged, is ineffective.

This judgment settles a recurring debate between owners and administrations, and clarifies a rule that is often misunderstood. Analysis.

The Facts: A Story That Happens Every Day

Mr. X, an owner in Issoire, acquired a commercial premises on the ground floor in 2015. The seller told him that the premises had been used as a dwelling from 1980 to 2010, then as a warehouse. Mr. X wishes to convert it back into a dwelling and rent it out. He applies to the town hall for a change of use authorisation, which is refused on the grounds that the premises was in commercial use as of 1 January 1970, according to the land registry records.

Mr. X challenges this refusal before the administrative court. He produces neighbour attestations and electricity bills from the 1980s-2000s showing residential use. The court rules in his favour, holding that the actual use after 1970 must be taken into account. The municipality of Issoire appeals.

The administrative court of appeal upholds the judgment. The municipality then appeals to the Court of Cassation. The Court of Cassation quashes the appeal judgment, ruling that evidence of de facto residential use after 1 January 1970 is inoperative. Only the use on that reference date is conclusive. The case is remitted to the Lyon Court of Appeal.

The Reasoning of the Court — Analysed

The legal basis is Article L. 631-7 of the Construction and Housing Code, which requires prior authorisation for any change of use of residential premises in certain municipalities. To determine whether a premises is in residential use, the law refers to its use as of 1 January 1970. Why this date? Because it is the reference date set by law to distinguish residential premises from other premises (commercial, professional, etc.).

The Court of Cassation interprets this text strictly: it does not matter that the premises was used as a dwelling for 30 years after 1970; what matters is its use on 1 January 1970. If on that date it was commercial, it remains commercial, unless a change of use authorisation is obtained. In short, the law does not allow proof of residential use by subsequent facts.

The lower courts had held that actual use should prevail, but the High Court reminds that the rule is mandatory. This confirms previous case law (Civ. 3rd, 18 March 2015, No. 14-10.384). There is no reversal: the Court of Cassation remains faithful to its strict position.

The arguments of the parties? The owner invoked the reality of residential use over several decades. The municipality relied on the letter of the law. The Court decided in favour of the text, considering that the objective of protecting the rental stock justifies a clear and predictable rule.

What This Changes for You — Practically

Landlord owner: if you buy a premises in Riom or elsewhere, check its use as of 1 January 1970 before any conversion project. A commercial premises in 1970 remains so indefinitely, unless authorised. For example, if you acquire a premises in Riom, rue de l'Hôtel-de-Ville, which was a grocery shop in 1970, you cannot convert it into a dwelling without authorisation, even if it has been occupied as a home since 1990.

Tenant: if you rent a dwelling that was in commercial use in 1970, the landlord may not be able to let it as a home. Check the compliance of your lease. If the dwelling is irregular, you could seek nullity of the lease or damages.

Purchaser: before buying, ask the seller for a certificate of use as of 1 January 1970. Consult the land registry records or the old cadastre. Non-compliance may block your project and expose you to legal action.

Co-owner: if a unit is converted without authorisation, the management company can take legal action. Irregular change of use may result in fines (up to €50,000 per premises) and reinstatement.

Four Tips to Avoid This Type of Dispute

• Check use as of 1 January 1970: Before any acquisition, consult the historical cadastre or ask the town hall (planning department) for a certificate of use. For example, in Issoire, the planning department can provide an extract of the 1970 land registry plan.
• Obtain prior authorisation: If you wish to change the use of a premises, do not rely on subsequent use. Submit an application for authorisation to the town hall, even if the premises has been occupied as a home for decades.
• Include a warranty clause: In the sale deed, insert a clause whereby the seller warrants that the premises was in residential use as of 1 January 1970, or failing that, that they have obtained a change of use authorisation. In case of misrepresentation, you can sue for latent defects.
• Keep old evidence: If you have owned the premises for a long time, keep documents proving use as of 1 January 1970: photos, bills, tenancy agreements from that time. These may be useful in case of challenge.

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Further Reading: Related Case Law and Developments

The Court of Cassation had already ruled similarly: Civ. 3rd, 18 March 2015, No. 14-10.384 (use as of 1 January 1970 decisive) and Civ. 3rd, 12 July 2018, No. 17-20.540 (same solution). The case law is constant and firm.

This position is criticised by some practitioners because it freezes the situation at an old date, making it impossible to regularise de facto residential use. However, it provides legal certainty: the rule is clear and predictable.

In the future, a legislative change could modify this reference date, but for now, the rule remains. The administrative courts continue to apply this judgment strictly.

Frequently Asked Questions

Can I prove that my premises was occupied as a home before 1970? Yes, but only use as of 1 January 1970 counts. If you prove it was occupied before that date, it is relevant. But note: the proof must relate to 1 January 1970 precisely.

What should I do if my premises was commercial in 1970 but has been occupied as a home for 30 years? You must apply to the town hall for a change of use authorisation. Without it, you are in breach. You risk a fine and an obligation to reinstate.

Does this rule apply everywhere in France? Yes, in all municipalities subject to Article L. 631-7, i.e. municipalities with more than 200,000 inhabitants and those in the Île-de-France region. Check whether your municipality is concerned.

What is the deadline to challenge a refusal of change of use? Two months from the notification of the refusal. After this period, the refusal becomes final.

Conclusion

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