Voie de fait and Jurisdiction: When the Tribunal Judiciaire Can Be Seised Directly

Imagine: you are the owner of a flat in Viroflay, in a quiet co-ownership. One morning, you discover that the mayor has issued an order of imminent danger (an emergency procedure for serious danger) and has had the building evacuated, or even ordered works. You consider that this decision is disproportionate, that it infringes your right of ownership without real basis. You challenge the decision before the administrative court, but the proceedings drag on. Crucial question: which judge has jurisdiction? And above all, when can you appeal or lodge an appeal in cassation?

This 1983 decision of the Court of Cassation gives a clear answer: as soon as a judge recognises the existence of a voie de fait (i.e. a seriously illegal administrative act that infringes a fundamental freedom or the right of ownership), his judgment can be immediately challenged by appeal in cassation, because it decides part of the main dispute. In other words, you do not need to wait for the end of the proceedings to challenge this classification. In short, the appeal in cassation is immediately admissible.

But what exactly does this change for you, as an owner in Poissy or elsewhere? This decision gives you an accelerated remedy when the administration commits a serious abuse of power. It allows the question of jurisdiction and the substance of the illegality to be decided quickly. Let us look together at the facts, the reasoning of the judges and the practical consequences.

The facts: a story like many that happen every day

The case begins in Clichy-la-Garenne, but it could just as easily have taken place in Viroflay or Poissy. On 30 March 1979, the mayor of Clichy-la-Garenne issued two orders concerning a building at 93-95 rue de Paris. The first, based on Article 305 of the Town Planning and Housing Code (now Article L. 511-3 of the Construction and Housing Code), was an order of imminent danger. It required the co-owners to carry out emergency works under penalty of sanctions. The second, based on Article 303 of the same Code (now Article L. 511-1), was an order of non-imminent danger, imposing longer-term works.

The co-owners challenged these orders before the judicial court (tribunal de grande instance, now tribunal judiciaire). They considered that the mayor had committed a voie de fait (an administrative act so illegal that it cannot be considered a normal administrative act, and which infringes their right of ownership). The court declared itself competent. The commune appealed, but the court of appeal confirmed the jurisdiction of the judicial court and ordered an expert assessment to evaluate the loss.

The commune appealed in cassation. But the question arises: is the appeal in cassation admissible? In principle, one cannot appeal in cassation against a decision that does not decide the merits of the dispute. But the Court of Cassation, in a judgment of 26 October 1983, considered that the appeal in cassation was admissible because, by recognising the existence of a voie de fait, the court of appeal had decided part of the main dispute. In other words, the question of voie de fait is a question of substance that can be challenged immediately.

The reasoning of the court — explained

The Court of Cassation relies on the general principles of the jurisdiction of the courts and on the notion of voie de fait. Voie de fait is a jurisprudential notion (created by the judges) which allows the judicial court (tribunal judiciaire) to be seised even in the presence of an administrative act, when that act is manifestly incapable of being linked to a power of the administration and it seriously infringes a fundamental freedom or the right of ownership. In this case, the court of appeal had considered that the mayor's orders constituted a voie de fait, which justified the jurisdiction of the judicial court.

The judges of the Court of Cassation reason as follows: the court of appeal, by declaring itself competent by reason of the existence of a voie de fait, necessarily ruled on the very existence of that voie de fait. However, this question is a question of substance, because it conditions jurisdiction and, beyond that, the owner's right to compensation. Consequently, the judgment that recognises the voie de fait is immediately subject to appeal in cassation, without waiting for the end of the expert assessment or the judgment on the merits.

This reasoning is part of a logic of efficiency: to avoid dilatory proceedings and allow the parties to quickly challenge the classification of voie de fait. undefined that if a judge considers that there is a voie de fait, the opposing party (often the administration) can immediately appeal in cassation to challenge this classification. Note however: this does not mean that the voie de fait is automatically retained; the Court of Cassation may set aside the judgment and refer the case to another court of appeal.

What this changes for you — practically

This decision has important practical implications for several profiles:

• Landlord owner: If the administration (town hall, prefecture) takes a disproportionate emergency measure (danger order, eviction without judgment), you can seise the tribunal judiciaire by invoking voie de fait. If the judge retains this classification, the administration can appeal in cassation immediately. But you will not have to wait for the end of the proceedings to challenge the illegality.
• Tenant: Are you being evicted without a court decision? This is a voie de fait. You can act quickly. If the judge confirms, the administration or the owner can appeal in cassation, but your situation will be examined on the merits.
• Co-owner: In Poissy, a danger order may concern an entire building. If you consider that the order is abusive, you can challenge the mayor's jurisdiction. If the judge retains the voie de fait, the appeal in cassation will be immediately admissible.

In figures: a voie de fait procedure can last 6 to 12 months at first instance, then 12 to 18 months on appeal. The appeal in cassation adds about 12 months. But this decision saves time by avoiding useless debates on jurisdiction. undefined, I have come across cases where owners in Versailles have quickly obtained satisfaction thanks to this classification.

Four tips to avoid this type of dispute

• Keep all documents: Keep a copy of the danger order, letters from the town hall, photos. In case of voie de fait, this evidence is essential.
• Consult a lawyer at the first signs: If you receive a danger order, do not delay. A lawyer lawyer can assess whether there is a voie de fait and advise you on strategy.
• Do not carry out works without agreement: If the town hall orders works, do not execute them without having verified their legality. You could incur liability.
• Check your insurance: Some legal protection insurances cover procedural costs in case of voie de fait. Check your contract.

Further reading: related case law and developments

The notion of voie de fait has been clarified by several decisions. In particular, the judgment of the Tribunal des Conflits of 17 June 2013 (No. 12-03.807) restricted voie de fait by requiring a particular 'extreme gravity'. The 1983 decision is anterior, but remains relevant on the procedural point: the immediate appeal in cassation is admissible as soon as the court of appeal recognises the voie de fait. Courts tend to limit voie de fait, but when it is retained, remedies are accelerated.

For the future, expect judges to be increasingly strict on the classification of voie de fait. If you are faced with a borderline situation, it is better to bring ordinary proceedings before the administrative court, unless the infringement of your property right is flagrant.

Summary and next steps

FAQ:

1. What is a voie de fait? It is an administrative act so illegal that it cannot be considered a normal administrative act, and which seriously infringes a fundamental freedom (right of ownership, freedom of movement).

2. When can I seise the tribunal judiciaire for voie de fait? When the administration has committed an act manifestly incapable of being linked to an administrative power (example: eviction without title, destruction of property without procedure).

3. What are the time limits for acting? The limitation period is 5 years from the act. But you must act quickly to avoid aggravation of the loss.

4. What to do if the town hall issues a danger order? Check its legality with a lawyer. If the order is disproportionate, you can challenge it before the administrative court, or before the tribunal judiciaire if you consider that there is a voie de fait.

5. What is the cost of a voie de fait procedure? Lawyers' fees vary (€1,500 to €5,000 for a full procedure). Legal protection insurance can cover part of it.

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 →