Sale of a communal asset: which court has jurisdiction to determine whether the sale is perfected?

Imagine: you own a house in Villefranche-de-Rouergue, with a large garden adjoining a plot belonging to the commune. One day, the commune decides to sell this plot. You put yourself forward as a buyer, a preliminary contract is signed, the municipal council authorises the sale. Then, a twist: the commune reverses its decision, cancels the sale and refuses to sign the final deed. What to do? Which court should you approach? This seemingly simple question gave rise to an important judgment of the Court of Cassation on 10 July 2013 (no. 12-22.198), which clarifies the boundary between the jurisdiction of the civil judge and that of the administrative judge.

In short, this judgment teaches us that the civil judge has jurisdiction to determine whether a sale of an asset belonging to the private domain of a commune is perfected (i.e. concluded). But beware: in doing so, he cannot rule on the legality of the municipal resolution that cancelled the first decision. In other words, the civil judge must not encroach on the territory of the administrative judge. But then, how can one enforce one's rights in practice? That is what we shall see.

This decision, rendered in a case opposing the commune of Biscarosse to a buyer, directly concerns any owner or real estate professional faced with a sale of communal land or building. In Rodez as elsewhere, local authorities regularly dispose of assets from their private domain. Knowing which court to seize and in what order can make the difference between a successful sale and endless litigation.

The facts: a story like many that happen every day

Mr. X, a private individual, wishes to acquire a plot registered as section AY no. 310, located in Biscarosse and belonging to the private domain of the commune. The municipal council, by resolution of 29 April 2002, authorises the sale at a price of €32,200 excluding tax. A preliminary contract is signed. But a few months later, the commune changes its mind: a new resolution cancels the previous one and the sale is called into question. Mr. X, who considers himself bound, sues the commune before the tribunal de grande instance to obtain forced execution of the sale.

The Pau Court of Appeal, by judgment of 11 May 2012, rules in his favour: it orders the execution, holding that the sale was perfected and that the commune could no longer go back. Crucially, it examines the validity of the second resolution, considering that it could not cancel the first. The commune appeals to the Court of Cassation, and the Court of Cassation quashes the appeal judgment. Why? Because the Court of Appeal exceeded its jurisdiction: by assessing the legality of the resolution cancelling the sale, it encroached on the powers of the administrative judge.

What is interesting is that the Court of Cassation does not say that the civil judge has no jurisdiction to consider the perfected nature of the sale. On the contrary, it reminds us: the sale of an asset from the private domain of a commune is a private law contract, therefore falling within the jurisdiction of the civil judge. But the civil judge cannot rule on the regularity of unilateral administrative acts (such as a resolution); that falls within the jurisdiction of the administrative judge.

The reasoning of the court — dissected

The Court of Cassation relies on the principle of separation of powers and the distribution of jurisdiction between the two orders of courts. The legal basis is Article L. 111-1 of the Code of Judicial Organisation (which attributes to the civil courts jurisdiction over private law contracts) and, by implication, the law of 16 and 24 August 1790 which prohibits the civil judge from hearing matters concerning acts of the administration. In practice, for an asset of the private domain, the sale is a private law contract, so the civil judge can ascertain its perfection (agreement on the thing and the price). But if the commune opposes a resolution cancelling the sale, the civil judge cannot assess its legality; he must stay the proceedings and refer the question to the administrative judge.

The Court specifies: 'A court of appeal exceeds its jurisdiction when, to order the execution of the sale, it makes an assessment on the question of whether a municipal resolution could bring about the cancellation of a previous resolution authorising that sale and, consequently, on the legality of that resolution.' In other words, the civil judge must stop where the assessment of the legality of an administrative act begins.

This reasoning is not a reversal: the Court of Cassation has already ruled in this sense on several occasions. But it is important because it reminds us of the boundary, often unclear to litigants. undefined, I have come across cases where buyers, thinking they would succeed before the civil judge, hit this procedural wall. The lesson: if the commune opposes a resolution, you must first challenge that resolution before the administrative court, then, if it is annulled, return to the civil judge to have the sale declared.

What this means for you — concretely

For a buyer of a communal asset: if the commune refuses to execute the sale by invoking a resolution, you must attack that resolution before the administrative court within two months of its publication. If the resolution is illegal, it will be annulled, and you can then ask the civil judge to declare the sale perfected.

For a neighbouring owner: if the commune sells a plot adjoining your land, and you believe the sale is illegal (for example, undervaluation of the price), you can challenge the resolution authorising the sale before the administrative judge. But beware: you cannot act directly before the civil judge to prevent the sale.

For a real estate professional (notary, estate agent): when a sale by a commune occurs, check that the resolution is final (appeal period expired) before signing the final deed. In Rodez, for example, a sale of communal land for a housing development could be delayed if a resident challenges the resolution.

Four tips to avoid this type of dispute

• Check the finality of the resolution: Before signing a preliminary contract with a commune, ensure that the appeal period against the resolution authorising the sale has expired (2 months from its publication).
• Have the resolution published in the collection of administrative acts: To avoid late challenges, the commune must publish its decision; you can request a copy.
• Anticipate an administrative appeal: If you are a buyer and the commune reverses its decision, promptly seize the administrative court to challenge the new resolution.
• Consult a specialised lawyer: The boundary between civil and administrative jurisdiction is technical. Prior consultation can save you procedural mistakes.

Further reading: related case law and developments

The Court of Cassation confirmed this position in a judgment of 12 March 2014 (no. 13-11.160), where it held that the civil judge cannot assess the legality of a municipal resolution even to declare a sale void. Similarly, the Conseil d'État, in a judgment of 18 June 2012 (no. 347058), reminded that challenges to the validity of a resolution authorising a sale fall within its exclusive jurisdiction. The trend is therefore clear: the two orders of courts are strictly separated on this issue. For the future, we can expect civil judges to be increasingly rigorous in not encroaching on administrative territory, even to the point of systematically referring questions of legality of acts.

Summary and next steps

FAQ

Q: Can I seize the civil judge to obtain the sale of a communal plot?
A: Yes, but only to declare that the sale is perfected (agreement on the thing and the price). If the commune opposes a resolution, the civil judge cannot assess its legality: he must refer that question to the administrative judge.

Q: What if the commune cancels its decision after the preliminary contract?
A: You must challenge the new resolution before the administrative court within two months. If it is annulled, you can ask the civil judge to declare the sale.

Q: What are the time limits for action?
A: An appeal against a resolution must be brought within two months of its publication. For an action to declare the sale, the limitation period is five years (general law period).

Q: Who bears the costs if the proceedings are lengthy?
A: Each party bears its own legal costs, unless the judge orders the losing party to pay a sum under Article 700 of the Code of Civil Procedure.

Q: Can I obtain damages if the sale fails?
A: Yes, if the commune has committed a fault (for example, by reversing its commitment without valid reason). But this falls within the jurisdiction of the civil judge.

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 →