Reference decision: cc • No. 11-26.879 • 2013-02-20 • View decision →
Imagine: you are an owner in Biscarrosse, on the Landes coast. You have acquired an agricultural plot that you have been renting to a farmer for years. The Local Urban Plan (PLU) has just classified your land as a zone AU, meaning "to be urbanised". You think: "Finally, I can build!" You give notice to your tenant for repossession for building. But he contests it. The court rules in your favour? Not so fast. The Court of Cassation, in a judgment of 20 February 2013 (No. 11-26.879), has ruled: a zone AU is not an urban zone within the meaning of Article L. 411-32 of the Rural and Maritime Fishing Code. In other words, you cannot terminate an agricultural lease solely because the PLU classifies your plots as a zone AU. What few people know is that the concept of "buildable zone" in everyday language does not always correspond to that used by the Rural Code. So, concretely, what should you do if you want to recover your land? This judgment is a reminder: it is not enough for a zone to be "buildable" under the PLU for it to be considered urban. It must actually be open for immediate urbanisation, i.e. public facilities (roads, networks) must be in place. The decision of 20 February 2013, rendered by the Third Civil Chamber, is now an essential reference for any owner-landlord, agricultural tenant or property professional. In this article, I will tell you the story of this dispute, analyse the judges' reasoning and give you practical advice to avoid finding yourself in a dead end.
The facts: a story that happens every day
Mr and Mrs Z., owners in Biscarrosse, had granted an agricultural lease to a farmer on several plots. In 2004, the municipality approved its PLU: two of the leased plots were classified as zone AU (one as zone AUx, the other as zone AUb). For the owners, this was the signal that they could finally build. They therefore gave notice for repossession for building, on the basis of Article L. 411-32 of the Rural Code, which allows the landlord to repossess the property to erect a building, provided that the plot is located in an "urban zone" or "zone to be urbanised" delimited by the PLU.
The tenant contested the notice before the agricultural lease tribunal. He argued that zones AU are not urban zones within the meaning of the law, because they are not yet equipped and do not allow immediate construction. The Z. couple retorted that the PLU had precisely classified these plots as zone AU to open them up for future urbanisation, and that the text also refers to zones to be urbanised. The tribunal ruled in their favour. But the tenant appealed.
The Court of Appeal of Pau reversed the judgment: it considered that zones AU are not urban zones within the meaning of Article L. 411-32, because they are not immediately buildable. The Z. couple appealed to the Court of Cassation. But the Court of Cassation, in its judgment of 20 February 2013, dismissed their appeal. It confirmed that plots classified as zone AU are not plots classified as an urban zone within the meaning of the Rural Code. In short, the owner cannot terminate the lease on that basis alone.
The reasoning of the court — analysed
To understand this judgment, we must look at Article L. 411-32 of the Rural and Maritime Fishing Code. This provision allows the landlord to repossess the premises to build a dwelling house or an agricultural building, provided that the land is situated in "a zone defined by a local urban plan as an urban zone or zone to be urbanised". The question was whether a zone AU (to be urbanised) falls within this category.
The Court of Cassation answered no. Why? Because the concept of "zone to be urbanised" within the meaning of the Rural Code is not the same as within the meaning of the Urban Planning Code. In the Urban Planning Code, a zone AU is a zone intended to be opened up for urbanisation, but which is not yet equipped. As long as public roads and water, electricity and sanitation networks are not built, it is not buildable. However, the legislator, when drafting Article L. 411-32, intended that the owner could build immediately, and not in an uncertain future. In other words, construction must be possible without waiting for further procedures or works.
The judges specify that the PLU itself may provide that zones AU are only buildable after a modification or revision of the PLU, or after the completion of a development project. This is therefore not immediate urbanisation. In this case, the plots were classified as AUx and AUb, which implied additional constraints (development guidelines, facilities).
In short, the High Court distinguishes two situations: if the zone is actually open for urbanisation (facilities in place, immediate buildability), the lease may be terminated. But if it is only "to be urbanised" in a deferred manner, it is not possible. This is a strict interpretation, protective of the tenant, who must not be deprived of his lease for a hypothetical project.
What this changes for you — concretely
If you are an owner-landlord in Mimizan or elsewhere, this decision directly concerns you. You may have agricultural land classified as zone AU and hope to recover it to build. But beware: the mere classification as zone AU is not enough. The zone must actually be buildable, i.e. public facilities must be in place and the PLU regulations must authorise construction without suspensive conditions.
undefined, I have come across cases where owners had given notice based on a recent PLU, and the tenant obtained the cancellation of the notice, with damages to boot. For example, in Biscarrosse, an owner had rented a 5,000 m² plot to a farmer for a rent of €1,000 per year. He wanted to build a house. He gave notice, but the zone AU was not open for urbanisation (no sanitation network). The court annulled the notice, and the owner had to pay €5,000 in damages to the tenant for the harm suffered.
If you are an agricultural tenant, this decision protects you. You can contest a notice if the zone is not immediately buildable. But beware: if the municipality carries out infrastructure works, the owner may later give a new notice.
For buyers, check the classification of the plot and its actual opening for urbanisation before signing a preliminary contract. A plot classified as zone AU may remain non-buildable for years, even though the seller promises you a house.
Four tips to avoid this type of dispute
- Check the opening for urbanisation of the zone AU: Consult the PLU regulations and the presentation report. If the zone is subject to a development guideline or a modification of the PLU, it is not immediately buildable. Ask the town hall about the state of facilities (roads, water, electricity).
- Do not give notice too early: Wait until the zone is actually open for urbanisation. A premature notice will be annulled and you could be ordered to pay damages. Better to secure your project first.
- Prefer an amicable termination: If you want to recover the land, negotiate an amicable termination with the farmer. Offer him compensation to vacate the premises. This is often quicker and less risky than court proceedings.
- Consult a lawyer specialising in agricultural law: Before any action, have a professional analyse your situation. Each PLU is different, and case law evolves. Tailored advice will save you from costly mistakes.
Further analysis: related case law and developments
The decision of 20 February 2013 is part of a consistent line of case law. Already, a judgment of the Court of Cassation of 15 June 2005 (No. 02-20.905) had held that zones AU are not urban zones within the meaning of Article L. 411-32. More recently, the Court of Cassation maintained this position in a judgment of 6 December 2018 (No. 17-26.675), specifying that even if the PLU has been modified to open the zone for urbanisation, the facilities must be in place.
The trend is therefore clear: the judges protect the tenant by limiting the possibilities of repossession for building. This means that owners must be cautious and not rely solely on the PLU classification. In the future, the legislator may intervene to clarify the distinction, but in the meantime, the case law remains strict. For property professionals, it is essential to inform clients of this subtlety.
Key points to remember
- Q: Is a plot classified as zone AU in the PLU immediately buildable?
A: No, not necessarily. The zone must be open for urbanisation, i.e. public facilities must be in place and the PLU must authorise construction without conditions. - Q: Can I terminate an agricultural lease if my land is in zone AU?
A: No, according to the Court of Cassation, a zone AU is not an urban zone within the meaning of Article L. 411-32 of the Rural Code. You must wait until the zone becomes buildable. - Q: What if my tenant contests the notice?
A: Consult a lawyer. If the zone is not open for urbanisation, the notice will be annulled. You can negotiate an amicable termination or wait for the actual opening. - Q: What are the risks if I give an abusive notice?
A: You may be ordered to pay damages to the tenant for the harm suffered (loss of operation, moving costs, etc.). The amounts can reach several thousand euros. - Q: How do I know if a zone AU is open for urbanisation?
A: Consult the PLU regulations and the presentation report. Ask the town hall about the progress of public facilities. You can also request a planning certificate.
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