Sale of Land to a SCI: When the Seller Cannot Demand Demolition of an Unplanned Building

Imagine: you are the owner of a plot of land in Castelsarrasin. You sell it to a SCI which promises to build you, in exchange, premises in the future building. The planning permission provides for a single building. But the SCI erects two, altering the landscape and perhaps the value of your lot. You demand the demolition of the second building. Will the courts rule in your favour?

This is the question the Court of Cassation considered in 1982, in a decision that remains authoritative today. For while the seller may seem aggrieved, the law also protects the buyer who has made no express undertaking. So, what should you check before signing? This decision gives you the key.

The judges' answer is clear: without a precise clause on the total floor area or the number of buildings, the seller cannot impose their vision. The case turned on the wording of the deed of sale. Let us analyse together this decision which is of interest to every property owner or professional, in Moissac and elsewhere.

The Facts: A Story Like Many Others

Mr and Mrs X, a couple of owners in Moissac, own a building plot. They sell it to a société civile immobilière (SCI) in 1975. The sale price is not in money, but in kind: the SCI undertakes to deliver to them, after construction, several private premises in the building to be erected. Planning permission is granted in January 1976, providing for a single building on the land.

The couple are put into possession of the promised premises, as agreed. But the SCI builds not one, but two buildings. The second was not provided for in the initial planning permission. Mr and Mrs X consider that this additional construction alters the economics of the operation, devalues their lot, and infringes their rights. They therefore claim in court the demolition of this unauthorised building.

The Court of Appeal dismisses their claim. In its view, the deed of sale specifies neither the total floor area of the private parts nor that of the common parts. Only the floor area of the premises given in payment was decisive. And above all, the SCI has not made any express undertaking to build only one building. Mr and Mrs X appeal to the Court of Cassation. But the Court of Cassation upholds the decision: no demolition.

The Reasoning of the Court — Analysed

The Court of Cassation relies on a classic principle: the interpretation of contracts. It recalls that the trial judges (the Court of Appeal) have sovereignly interpreted the ambiguous clauses of the deed of sale. However, the deed contained no precision as to the overall floor area of the building. The only certain element was the floor area of the premises promised to the seller.

In law, the obligation to build only one building must be express (Article 1103 of the Civil Code: contracts lawfully formed stand as law for those who have made them). In the absence thereof, the SCI remains free to develop its land as it sees fit, subject to the planning permission obtained (even if a 'salvage' permission was subsequently granted to regularise the second building).

The decision also rejects the argument of the X couple that the plan annexed to the planning permission formed an integral part of the sale. The judges consider that this plan was merely an information document, and not a contractual undertaking as to the number of buildings. Demolition is therefore not due.

What This Means for You — Practically

If you are a seller of land to a developer or a SCI, in exchange for premises to be built, you must imperatively include in the deed of sale all the characteristics of the project: number of buildings, total floor area, height, external appearance, etc. Without this, you will not be able to demand modification afterwards.

Let us take a concrete example: in Moissac, a plot sold for €200,000 converted into two flats of 70 m² each. If the deed does not specify that the building will have only 4 storeys, the developer may add a fifth, altering the view and sunlight of your lots. And you will not be able to claim anything.

For buyers (SCI, developers), this decision reassures you: as long as you comply with the precise obligations of the deed, you are free to build according to your needs, subject to planning permissions. But be careful: if you promise something orally to the seller, it will have no legal value. Put everything in writing.

Four Tips to Avoid This Type of Dispute

• Have a detailed deed of sale drafted: mention the exact number of buildings, their location, the total floor area of private and common parts, and any important characteristic of the project.
• Attach the planning permission to the deed and specify that it forms an integral part of the sale, with a clause stating that any substantial modification requires the seller's consent.
• Require an express undertaking from the developer on the essential elements (number of buildings, height, appearance) in a penalty clause providing for damages in case of non-compliance.
• Consult a solicitor before signing: in a sale on terms or off-plan, a professional can identify ambiguities and protect you effectively.

Further Reading: Related Case Law and Developments

This 1982 decision is part of a consistent line of the Court of Cassation: the judge cannot fill gaps for the parties. The same reasoning is found in a decision of 19 March 1997 (No. 95-10.123) where a seller had tried to obtain the demolition of a construction not conforming to non-contractual plans. Same rejection.

However, a recent development is worth noting: the ELAN Law of 2018 now imposes mandatory mentions in off-plan sale promises (VEFA), particularly on floor area and characteristics. If your sale falls within this framework, you are better protected. But for sales of land with payment in kind, the 1982 decision remains the reference.

The trend of the courts is clear: they require maximum contractual precision. In its absence, the builder's freedom prevails. So, be vigilant from the drafting stage.

Summary and Next Steps

FAQ:

• Can I demand the demolition of a building not planned in the planning permission if the deed says nothing? No, unless the deed expressly mentions the number of buildings or the total floor area.
• What if the developer builds more than planned? Check your deed: if a clause specifies the number of buildings, you can claim damages, or even demolition.
• What is the time limit to act? In construction matters, the limitation period is 5 years from the completion of the works. But it is better to act as soon as you become aware of the breach.
• Can an amending planning permission regularise the situation? Yes, as in the decision, a 'salvage' permission may be granted, but this does not entitle you to demolition if the deed did not prohibit it.

Checklist: What to Do If You Sell Land Against Premises to Be Built

1. Have the deed drafted by a solicitor with precise clauses on the project.
2. Attach the planning permission and the leasehold title.
3. Require an express undertaking from the developer on the number of buildings and total floor area.
4. Provide for a penalty clause in case of unilateral modification.
5. Keep all documents (plans, correspondence, etc.) that could be used in case of dispute.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of litigation — and often much more. Make an appointment →