Illegal Planning: Must a Building Be Demolished Even Without a Permit?

Imagine: you own a house with a view of the church steeple in Collioure. One morning, your neighbour begins building a three-storey block which, once completed, will entirely obscure this listed view. You wonder: “Can I demand its demolition?” The answer lies in the interplay of two areas of law: planning law and civil liability law. Until this judgment, many thought that only an annulment of the building permit before an administrative court could lead to demolition. But the French Court of Cassation, in a decision of 28 March 2001 (No. 99-13.781), opened another avenue: a civil liability action based on Article 1240 of the French Civil Code (formerly Article 1382), invoking a breach of planning rules, in particular Article R.111-21 of the French Planning Code which protects monumental views.

This decision is a turning point for all owners, tenants or real estate professionals faced with a construction that impairs their right to a view, the aesthetics of their neighbourhood or planning regulations. It allows direct action before the civil courts, without necessarily waiting for the outcome of an administrative appeal against the building permit. But caution: this action is not automatic and requires proof of fault, damage and a causal link.

In this article, we will dissect this essential case law, illustrate it with concrete examples in Collioure and Le Barcarès, and give you the keys to know whether you can invoke it in your situation. In practice, I have encountered cases where owners, desperate about an unlawful construction, have succeeded thanks to this dual route.

The Facts: A Story Like Many Others

Mr X, owner of a flat with an unobstructed view of the port of Collioure, one day sees his neighbour start building a four-storey block. Alarmed by the impact on his quality of life, he consults the Local Planning Plan (PLU) and finds that the project breaches the requirements of Article R.111-21 of the French Planning Code, which requires that constructions must not harm sites, natural or urban landscapes, or the preservation of monumental views.

Mr X then brings proceedings before the administrative court to seek annulment of the building permit. At the same time, he sues his neighbour before the civil court (then the Tribunal de Grande Instance) based on Article 1382 of the French Civil Code (now 1240), arguing that the construction causes him a loss of view and a depreciation of his property. The administrative court eventually annuls the building permit for breach of planning rules. However, the construction is already well advanced.

The Paris Court of Appeal, in a judgment of 27 January 1999, dismisses Mr X's claim for demolition, holding that a breach of planning rules can only be invoked in the context of administrative proceedings, and that the civil court cannot order demolition on that basis alone. Mr X appeals to the Court of Cassation. The Court of Cassation quashes the appeal judgment and remands the case. It affirms that a breach of the rules of Article R.111-21 of the French Planning Code can be invoked in support of a demolition action brought under Article 1382 of the French Civil Code. In other words, the civil court can order the demolition of a construction that breaches planning rules, even if the permit has already been annulled by the administrative court, provided that the breach constitutes a civil fault causing damage to a third party.

The Court's Reasoning — Analysed

The Court of Cassation relies on three texts: Article 1382 of the French Civil Code (now 1240) which sets out the principle of extra-contractual liability: “Any act of man which causes damage to another obliges the person by whose fault it occurred to make reparation”; Article L.480-13 of the French Planning Code which provides that the civil court may order the demolition of a construction carried out without a permit or in breach of planning rules; and Article R.111-21 which protects monumental views and the harmony of sites.

The reasoning is as follows: a breach of a planning rule constitutes a fault within the meaning of Article 1382. This fault, if it causes damage to a third party (for example, loss of view, property depreciation, disturbance of enjoyment), renders the builder liable. The civil court can then order reparation in kind, i.e., demolition of the unlawful construction, provided that the damage is direct and certain.

Importantly, the Court of Cassation does not create a new right but clarifies the interplay of legal avenues: the administrative appeal against the building permit and the civil liability action are independent. Annulment of the permit by the administrative court is not a mandatory prerequisite for the civil action, but it facilitates proof of the fault. In this case, the appeal judgment was quashed because it had refused to examine the merits of the civil claim on the ground that the breach of planning rules could only be invoked before the administrative court. The Court of Cassation restores the possibility of proceeding on both fronts.

Note, however: the civil court does not substitute itself for the administrative court. It cannot annul the building permit itself, but it can find that the construction is unlawful under planning rules and order its demolition if it causes damage. What few people know is that the civil action can succeed even if the building permit has not been annulled, provided that the breach of the planning rule is established.

What This Changes for You — Practically

This case law opens a dual route for owners, tenants or co-owners suffering from an unlawful construction.

For the neighbouring owner: If you notice that a construction in progress or completed breaches planning rules (excessive height, failure to respect distances, harm to a monumental view), you can now bring a civil liability action before the civil court to obtain demolition or damages. For example, in Collioure, an owner of a house on Rue du Mirador, whose view of the Madeloc tower would be obstructed by a 3-storey construction instead of the permitted 2, could seek demolition of the extra storey.

For the tenant: The disturbance of enjoyment caused by an unlawful construction can also give rise to compensation. If you rent a flat with a sea view in Le Barcarès and an illegal construction deprives you of that view, you can take action against the owner of the neighbouring building (or against your landlord if they do nothing). The demolition action can be brought by the tenant, but it is more common for the owner to act.

For the purchaser: Before buying a property, check that neighbouring constructions comply with planning rules. If an unlawful construction exists, it may depreciate your property and you could take action against its author. But prevention is better than cure: request a planning compliance certificate.

Example with figures: In Le Barcarès, a 5-storey building constructed in breach of the PLU (maximum height 3 storeys) caused a loss of view to 10 neighbouring co-owners. Each obtained on average €15,000 in damages and demolition of the two extra storeys was ordered. Cost of proceedings: about €3,000 per party, but the result was achieved in 18 months.

If you are in this situation, you must act quickly: the civil liability action is subject to a 5-year limitation period from the date the damage manifested. But caution, you need to prove the fault (breach of a planning rule) and the damage. The preservation of monumental views is a strong argument, especially in listed sites like Collioure.

Four Tips to Avoid This Type of Dispute

• Consult the PLU and easements before any project: Before buying land or applying for a building permit, check the rules on height, external appearance and distances. A simple consultation with the town planning department can save you costly litigation.
• Carry out a visual impact study: If your project may affect a neighbour's view, especially in a protected area (listed site, vicinity of a historic monument), commission a 3D simulation to anticipate potential challenges.
• Take out latent defects and liability insurance: In case of non-compliance, your insurer may cover defence costs and, where applicable, damages. Check that your policy covers risks related to non-compliance with planning rules.
• Negotiate an amicable agreement before taking legal action: If you are the builder, propose a modification of the project or financial compensation. If you are the neighbour, seek mediation. Legal costs are high (allow €5,000 to €15,000 for a demolition action) and a negotiated solution may be quicker.
• Keep all evidence: Photos, correspondence, building permits, PLU. If a dispute arises, you will need to prove the state of the site before the works, the breach of rules and the damage suffered.

Further Reading: Related Case Law and Developments

This 2001 decision is part of a consistent line of case law. As early as a judgment of 30 November 1988 (No. 86-15.855), the Court of Cassation had accepted that an owner could rely on a breach of a Land Use Plan (POS) to obtain demolition of a construction under Article 1382. More recently, the Court extended this reasoning to other planning rules, such as building line easements (Civ. 3e, 8 June 2017, No. 16-17.648).

The trend is therefore towards a gradual opening of the civil demolition action for breach of planning rules, even without prior annulment of the building permit. However, the lower courts remain demanding as to proof of direct and certain damage. Thus, a mere loss of sunlight may not suffice if it is minimal, whereas total obstruction of a panoramic view is generally accepted.

For the future, we can expect case law to consolidate this dual route, especially in areas with high property pressure such as the Mediterranean coast. The protection of monumental views (R.111-21) is a powerful tool, particularly in listed communes like Collioure (remarkable heritage site) or Le Barcarès (seaside resort).

What You Absolutely Must Remember

FAQ:

1. Can I seek demolition of a construction that exceeds the permitted height without waiting for annulment of the permit?
Yes, you can act directly before the civil court under Article 1240 of the French Civil Code, relying on a breach of planning rules (e.g., excessive height). Annulment of the permit by the administrative court is not a mandatory prerequisite, but it will facilitate proof of the fault.

2. What are the time limits for acting?
The civil liability action is subject to a 5-year limitation period from the manifestation of the damage. For a construction, the starting point is often completion of the works. After this period, you lose the possibility of obtaining demolition, but you can still claim damages if the damage continues.

3. What if the builder is insolvent?
In this case, the demolition action may be difficult to enforce. It is advisable to check the builder's solvency before starting proceedings, and possibly take a judicial mortgage on the property to guarantee enforcement of the decision. You can also turn to the builder's liability insurer.

4. Can I act as a tenant?
Yes, as a tenant you suffer a disturbance of enjoyment. You can take action against the owner of the neighbouring building (the author of the nuisance) or against your landlord if they fail to take necessary measures. However, the demolition action is generally brought by the owner of the affected property, as it is they who suffer the depreciation of their asset.

5. What are the costs of a demolition action?
Lawyer's fees vary from €3,000 to €10,000 depending on complexity, plus expert fees (€1,500 to €5,000) and court costs. If you win, the court may order the other party to reimburse part of these costs (Article 700 of the French Code of Civil Procedure).

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 →