Voie de fait: when can the Administration be sued before a judicial court?

Imagine: you operate a plot of land in Giromagny, you have installed light constructions, a small workshop, fences. One day, without notice, the Direction départementale de l'Équipement (DDE) arrives and starts destroying your installations. You are furious, you want to file a complaint before the judicial court to obtain compensation. But there it is: the judge refers you to the administrative court, explaining that you are not the owner of the land. How is this possible? The answer lies in two words: voie de fait. This decision of the Court of Cassation of 1999 sets the limits of this explosive concept. It concerns you if you are a tenant, an occupant without title, or even an owner of property threatened by public works. Analysis.

The question that every owner or occupant asks: "Can the Administration do anything on my land?" In principle, no. But for the judicial court (the one dealing with disputes between individuals) to intervene, it must be shown that the administrative action constitutes a voie de fait. However, according to the Court of Cassation, voie de fait requires a serious infringement of private property or a fundamental freedom. If you are not the owner of the land, the infringement of your mere enjoyment is not enough. In other words, if you are a tenant or occupant without title, your remedies are limited to the administrative court, unless you invoke a fundamental freedom (which was not the case in this matter).

This decision, handed down on 1 December 1999, is a cornerstone of administrative and property law. It reminds that the jurisdiction of the judicial court to hear the actions of the Administration is exceptional. For non-lawyers, it is a headache: "Which court can I sue the town hall in?" The answer depends on your right over the property. Let's break down this story and its practical consequences together.

The facts: a story like many that happen every day

Let's go back to 1978. The Direction départementale de l'Équipement of Martinique issues an authorisation for the construction of installations on plots, subject to the suspensive condition of a sale by notarial deed. The beneficiaries, individuals, settle and operate the land. But in 1986, eight years later, the DDE itself undertakes construction works on these same plots, destroying the occupants' installations. The latter, whom we will call "the Y consorts", sue the State before the tribunal de grande instance of Fort-de-France to obtain compensation for the damage suffered. Their argument: the execution of the works in dispute constitutes seriously unlawful acts, a voie de fait.

The court of appeal of Fort-de-France dismisses their claim, holding that the Y consorts are not the owners of the plots. However, voie de fait requires an infringement of private property or a fundamental freedom. Not being owners, they cannot rely on voie de fait. The Y consorts appeal to the Court of Cassation. They argue that even without being owners, they suffer a disturbance of enjoyment of their installations, which constitutes an infringement of their fundamental freedom to use their property. But the Court of Cassation dismisses their appeal on 1 December 1999: "Voie de fait requires that the action of the Administration has seriously infringed private property or a fundamental freedom." Since the Y consorts are not owners and have not invoked a fundamental freedom, the judicial courts lack jurisdiction. The case goes back to the administrative court.

This case illustrates a classic conflict between the Administration and individuals. In Giromagny or Beaucourt, similar situations can arise: the municipality carries out works on land you occupy without being the owner, or your landlord is a public body. How to react? Read on.

The reasoning of the court — broken down

The Court of Cassation relies on the principle of separation of administrative and judicial authorities (law of 16-24 August 1790). In France, the judicial court cannot hear acts of the Administration, except in cases of voie de fait or irregular encroachment. Voie de fait is an exception: it allows the judicial court to intervene when the Administration commits a serious illegality infringing private property or a fundamental freedom. But this exception is strictly limited.

In this decision, the Court reminds that voie de fait requires two cumulative conditions: 1) a serious infringement of private property or a fundamental freedom; 2) an action manifestly incapable of being connected to a power of the Administration (serious illegality). In this case, the court of appeal had found that the Y consorts were not the owners of the plots. Consequently, the infringement of their right of enjoyment (simple disturbance of enjoyment) is not an infringement of private property within the meaning of voie de fait. And since they had not invoked an infringement of a fundamental freedom, the condition was not met.

The Court also specifies that it was not necessary to investigate a possible infringement of fundamental freedoms, since only the disturbance of enjoyment was alleged. In other words, if the Y consorts had invoked, for example, an infringement of their freedom of movement or their private life, the result could have been different. But they did not. In short, this decision confirms consistent case law: voie de fait benefits only owners, unless an infringement of a fundamental freedom is shown. What few people know is that the concept of voie de fait has since been restricted, notably by the decision TC, 17 June 2013, M. Bergoend which now requires a serious infringement of a fundamental freedom or extinction of the right of property. But in 1999, the criterion was already strict.

What this changes for you — concretely

This decision has major practical implications for owners, tenants and occupants of immovable property, particularly when the Administration (municipality, department, State) intervenes on land.

If you are the owner: you are in a strong position. If the Administration destroys your fence, builds on your land without authorisation, or prevents you from accessing your property, you can invoke voie de fait and bring the matter before the judicial court (tribunal judiciaire) to obtain compensation and stop the disturbance. For example, in Beaucourt, if the municipality undertakes road works on your land without expropriation, you can act in voie de fait. Be careful, however: the action must be seriously unlawful (e.g. lack of title, violation of a court decision).

If you are a tenant or occupant without title: the situation is more complex. Like the Y consorts, you cannot rely on voie de fait for a simple infringement of your enjoyment. Your remedies lie with the administrative court (tribunal administratif), unless you invoke a fundamental freedom (for example, an infringement of your home within the meaning of Article 8 of the European Convention on Human Rights). undefined, I have come across cases where tenants of social housing had their garden destroyed by municipal works: without a title of ownership, they had to go through the administrative court, which lengthens delays and complicates the procedure.

If you are a purchaser: check the legal situation of the property carefully before buying. If the seller is not the owner (for example, he occupies without title or the property is on the public domain), you could inherit his difficulties. A specific example: in Giromagny, a purchaser bought a shed built on a municipal plot without realising it. When the municipality wanted to demolish it, the purchaser tried to invoke voie de fait, but he was not the owner of the soil. He had to negotiate a forced sale or start a long procedure before the administrative court.

In summary: before taking action, determine your right over the property. If you are the owner, the judicial court is your ally. Otherwise, prepare for an administrative procedure.

Four tips to avoid this type of dispute

• Check your title of ownership: Before undertaking works or contesting an action of the Administration, make sure you are indeed the owner of the land. Consult the land registry and the land publicity service. If in doubt, consult a notary or a lawyer.
• Document all exchanges with the Administration: Letters, emails, bailiff's reports, photographs. If you receive a notice of works or a formal notice, keep a copy. This will allow you to demonstrate the serious illegality.
• Invoke the right fundamental freedoms: If you are not the owner, consider invoking a fundamental freedom (right to respect for private life, freedom of movement, right to a fair trial). This may open the way to an action in voie de fait before the judicial court.
• Consult a lawyer lawyer before acting: The boundary between judicial and administrative jurisdiction is subtle. A lawyer will help you choose the right court and avoid dismissal for lack of jurisdiction. In Beaucourt as in Giromagny, a prior consultation can save you months.
• Negotiate before going to court: Often, a registered letter with formal notice addressed to the local authority may be enough to resolve the situation. Administrations often prefer to settle rather than face a public trial.

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Further reading: related case law and developments

This 1999 decision is part of consistent case law. Before it, the decision TC, 23 June 1960, Société du journal l'Aurore had already laid down the principle that voie de fait requires a serious infringement of property. More recently, the decision TC, 17 June 2013, M. Bergoend tightened the conditions: it requires a serious infringement of a fundamental freedom or extinction of the right of property. In other words, mere irregular encroachment is no longer sufficient; a manifest and serious violation is required. This development tends to limit recourse to the judicial court, in favour of the administrative court, which is more competent to hear actions of the Administration.

Furthermore, the European Court of Human Rights (ECHR) can sometimes offer additional protection. In the case Brosset-Triboulet and Others v. France (2014), the ECHR condemned France for violation of the right to property due to an irregular encroachment. But the ECHR is only a subsidiary remedy, after exhaustion of domestic remedies.

For the future, the trend is clear: the administrative court extends its jurisdiction, while voie de fait becomes the exception. Owners must therefore be vigilant: if you are faced with an action of the Administration, do not wait. Consult a lawyer to know whether you can act in voie de fait or whether you must go through the administrative court.

What you absolutely must remember

FAQ:

1. What is voie de fait? It is an action of the Administration that is seriously unlawful and infringes private property or a fundamental freedom. It allows you to bring the matter before the judicial court.

2. Can I invoke voie de fait if I am a tenant? Only if the action infringes a fundamental freedom (e.g. right to respect for the home). Mere infringement of enjoyment is not sufficient.

3. What are the time limits for acting? In voie de fait, you have 5 years from the act (ordinary limitation period). But before the administrative court, the time limit is 2 months for an application for judicial review. Do not delay.

4. Which court should I sue? If you are the owner and the action is seriously unlawful: tribunal judiciaire. Otherwise, tribunal administratif.

5. What should I do if the Administration destroys my installations? Take photos, have a bailiff's report made, send a formal notice, and consult a lawyer. Do not wait.

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