Irregular constructions are constructions that have been built without any planning permission having been sought (planning permission or prior declaration) or that have been built without complying with the requirements set out in theplanning permission.
In such situations, what risks do unauthorised constructions run? Can the authorities require them to be demolished?
These are important questions, and may be of interest to potential buyers who wish to acquire a house built without complying with planning regulations.
When buildings are built illegally, there are risks ofcriminal, civil, tax and administrative penalties . New Deal Immobilier takes a closer look at these penalties.
- Illegal construction and the risk of criminal penalties:
According to article L480-4 of the Code de l'urbanisme, in the event of unauthorised construction or construction that does not comply with the authorisation, the users of the land, the beneficiaries of the work, the architects, the contractors or other persons responsible for carrying out the work may be punished by a fine of between €1,200 and an amount that may not exceed, either, in the case of construction of a floor area, a sum equal to €6,000 per square metre of area built, demolished or rendered unusable within the meaning of article L. 430-2 or, in all other cases, a sum of 300,000 euros. In the event of a repeat offence, in addition to the fine set out above, the offender may be sentenced to six months' imprisonment.
The limitation period is three years fromcompletion of the work.
The beneficiary of the work can only be the original beneficiary. This means that the purchaser of the property cannot be affected by these penalties.
However, in addition to the above penalties, the judge may order ancillary measures to bring the buildings into compliance, up to and including demolition of the illegally built property. The purchaser of the property, even if he cannot be held liable, will have to suffer the consequences. These measures are real in nature and, as such, will apply to the property in whichever hands it may be located.
- Unlawful construction and risk of civil penalties:
Any person who suffers personal injury as a result of irregular construction may bring an action for damages and interest against the person responsible for the construction under article 1382 of the Civil Code. For this to happen, the building must breach a town planning rule and the claimant must prove that this breach causes damage.
This action is time-barred ten years aftercompletion of the works.
- Irregular construction and risk of tax penalties:
The tax penalties incurred for building that does not comply with planning permission or without permission are the payment of fees relating to the permission (e.g. development tax), sometimes accompanied by penalties equal to the amount of the taxes due.
- Illegal construction and risk of administrative penalties
* The obligation to regularise in the event of a new application for authorisation
If a property owner applies for new planning permission for a new building on the same property (e.g. an extension) and the building is not in order, the authorities may object to the new permission until the current situation has been regularised.
However, if a minimum period of ten years separates the completion of the irregular construction from the new application for authorisation, the authorities will no longer be able to base their refusal of the new authorisation on the irregularity of the initial construction. In this way, the legislator is instituting a genuine right to be forgotten.
However, the legislator has made provision for certain situations in which this right to be forgotten cannot be exercised (article L111-12 of the Town Planning Code). These include
> When the situation of the building is such as to expose its users or third parties to a risk of death or injury likely to result in permanent mutilation or disability;
> Where demolition proceedings have been initiated under the conditions set out in article L. 480-13 of the French Town Planning Code;
> When the building is located in a site classified under articles L. 341-2 et seq. of the Environment Code or a nature park created under articles L. 331-1 et seq. of the same code;
> When the building is on public land;
> Or when the building has been constructed without planning permission.
If the original building was erected without planning permission, the authorities will still be able to refuse a new permit for the same property until the original situation has been rectified. This can be a dangerous situation, particularly for the purchaser of a house for which no planning permission has been granted: they may be refused any new planning application for the property until the initial construction has been rectified (in which case they will have to apply for planning permission for all the buildings).
* Prohibition on connection to the networks
Under article L111-6 of the French Town Planning Code, the authorities may refuse to allow unauthorised constructions to be permanently connected to the electricity, water, gas or telephone networks.
This prohibition is not subject to any statute of limitations.
In practice, however, this prohibition is rarely applied
* Ban on rebuilding
According to article L111-3 of the French Town Planning Code, "the identical reconstruction of a building destroyed or demolished within the last ten years is authorised notwithstanding any town planning provision to the contrary, unless the local map, the local town planning scheme or the plan for the prevention of foreseeable natural risks provides otherwise".
This right to identical reconstruction is withdrawn if the building has been built irregularly.
Once again, this sanction is not subject to any statute of limitations.