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Service France
Hélene Mézin French qualified notaire at Sykes Anderson LLP London Solicitors and Chartered Tax Advisers discusses the implications of building not complying with French planning regulations.
Please note that French property law is a complex subject and you should not rely on this article without professional advice on the facts of your case.
When considering purchasing a property in France advice should always be sought on the planning rules in France. The property's planning history from when it was first built up to the present day should be investigated. The initial building permit and those for any subsequent alterations should be supplied by the seller. The latest stage at which this should be provided is with the deed of sale although preferably the permits will be attached to the preliminary contract.
If works have been carried out without the required planning permission, it could be the case that the buyer risks being liable for breach of any of the rules by virtue of being the new owner of the property. A buyer may decide to proceed with their purchase despite this. However in doing so they would run several risks.
There are criminal sanctions (i.e. a fine or even a prison sentence) which can be handed out for matters related to building without planning permission. However these may only be incurred by the person who carried out the unauthorised works. Article 8 of the French Criminal Code provides that this potential criminal liability lasts for a period of three years following the completion of the works. Criminal action cannot apply to subsequent owners of the property, so should be no risk to the prospective buyer.
Although criminal liability may not apply to the buyer, they do risk tax sanctions. Any taxes which should have been paid as a result of the building permit will become payable with the addition of penalties due to late payment. This applies for ten years following the completion of the work with the exception of the local equipment tax (
There is also a civil action which can be incurred by the potential buyer.. It is possible for neighbours, or any other third party, to claim that they have suffered as a result of a building being erected in breach of planning regulations or without a building permit. Article 1382 of the French Civil Code provides that if a third party can show that they have suffered a loss as a direct effect of damage caused by the building, they may demand that the building be demolished or the site restored to its previous status under civil law. Any such action must be brought within 10 years of the works completing.
This action applies equally whether the works were completed before or after the publication of ENL law number 2006-872 ("Loi Engagement National pour le Logement") on 16 July 2006. However the rule is different if buildings have been erected with planning permission which has since been deemed illegal, through lack of understanding of town planning regulations or public use easements. The ENL law provides for a shorter period of prohibition (2 years) for buildings completed after 14 July 2006. For constructions prior to this date, the preceding regulations still apply and the period of prohibition is 5 years.
The last potential sanctions are administrative. They have been modified slightly by the new ENL law of 13 July 2006. In days gone by the French administration would refuse applications to carry out new building work if this was attached to a building that had previously been erected without, or in breach of, planning permission. There was no time limitation on this so it affected any subsequent authorisation. The only solution was for an owner to apply for a complete building permit, taking into account the new works planned as well as any former works that were carried out without authorisation. This carried the significant risk that planning permission would be rejected on the grounds that town planning regulations had been breached. It was also necessary to check whether or not building permission would be granted as far as POS and urban restrictions (classified zone, green zone, coastal zone etc) were concerned.
The latest publication of article L111.12 of the Town Planning Code relaxes the rules in relation to older constructions. It states that if construction was finished more than 10 years ago, refusal of planning permission or of declaration of works can no longer be based on the original building's breach of town planning regulations. There are limits on the applicability of this 10-year limitation however. It does not apply if a building has been erected without any planning permission or if buildings have been erected on a classified site. However it seems the 10 year rule does apply to buildings which did not have a previous declaration of works so they should benefit from the new law. The new provisions apply to buildings finished more than 10 years ago, both before and after the ENL law mentioned above.
It should also be noted that a property built without planning permission cannot be connected to the distribution networks for water, electricity, gas, telephone.
Furthermore there is the rule in article L 111.3 of the Town Planning Code to consider. This states that there is no right to restore properties which have been destroyed to their former state if they were non-compliant constructions.
This goes to show that there are major potential consequences for a buyer who purchases a property which was built without complying with planning regulations. Anyone seeking to purchase in France should be aware of these rules and the associated sanctions. It is especially crucial to check the date of the completion of works to see whether or not sanctions apply. This information can be found by various means, for instance from contractors' invoices.May 2008