"SCARE ME": BUYING A BUILDING CONSTRUCTED WITHOUT PLANNING PERMISSION

"We've found our dream home! It's a 160 m2 single-storey villa. It was originally a small 50 m2 cottage that the previous owners extended and renovated. We're thinking of improving it further by adding a pool house and a swimming pool. The planning permission the sellers obtained for the extension only mentions an extra 50 m2, but the estate agent told us that since it was more than ten years ago, there's nothing to worry about!"

CAREFUL! There are many approximations in the account above, which may mislead the buyers.

On this Halloween weekend, we invite you to understand why this purchase could turn into a horror story... and how your notaire can help you avoid this scenario!

The ten-year building guarantee

First of all, the 10-year period does need to be taken into account, but it is not the only one where planning permission is concerned.

This 10-year period does, however, affect the ten-year building guarantee (garantie décennale). This guarantee is owed by the sellers or the builder for 10 years from the acceptance of the works. It covers defects that affect the soundness of the building (or of its main elements) and/or make it unfit for habitation.

Here, therefore, the building guarantee no longer applies.

The steps to confirm that your building is lawful

Next, let us recall the ideal planning permission process:

(1) Obtaining planning permission (permis de construire)

(2) Filing the declaration of completion and compliance of the works (DAACT)

(3) Obtaining the certificate of non-objection to the DAACT, which confirms compliance

Only once these three steps have been completed is your building validated from an administrative point of view.

In the account above, there is no DAACT, and therefore no compliance...

Finally, an important point: it is not a matter of obtaining planning permission at any cost, but of obtaining planning permission that specifically authorises the works carried out.

In this case, the sellers obtained permission for a 50 m2 extension... but actually built 110 m2!

What will happen if the buyers purchase the property as it stands?

If they decide to buy as it stands, they must be aware of the following risks:

Criminal penalties

First of all, the limitation period for criminal proceedings is six years from completion of the works. They should therefore be protected from these criminal penalties. But as no declaration of completion was filed, it will be up to them to prove the date on which the extension was completed.

For information, the penalty may be a fine of between 1,200 euros and 6,000 euros per square metre of floor area built unlawfully. For repeat offences, a six-month prison sentence may be added to the fine.

Civil penalties

In addition, neighbours or other third parties may bring legal action if they suffer harm. Third parties may act within 5 years of discovering the facts (if completion took place after 18 June 2008). The court may go as far as ordering demolition at the owner's expense.

The municipality may also go to court to seek the demolition of the extension or to have it brought into compliance. This action is only possible for 10 years from completion of the works. But here again, it will be up to the buyers to prove the completion date.

Administrative penalties

Finally, buyers must be aware of the administrative penalties, which apply with no time limit:

They will have to regularise the situation before applying for any new permit. (However, if completion took place more than 10 years ago, a permit cannot be refused on the grounds that the original building is unlawful, unless there is a danger or the property is located in a listed site or a nature park.)

Buildings constructed "outside" the planning permission cannot, in principle, be connected to public utility networks such as water, gas, electricity and telephone.

If the building is damaged (fire, collapse...), identical reconstruction is only guaranteed for the lawfully built part.

In this case, identical reconstruction would only cover 100 m2 of the 160 m2 in total.

Moreover, permission to build the pool house and swimming pool is likely to be refused or delayed because of the irregularity of the previous works.

What can be done to protect the buyers?

Always ask your notaire for advice.

They will invite you to find out about the planning rules that apply locally.

You will then have a clearer view of what can and cannot be built in the area where you are buying.

Planning documents can also be requested directly from the planning department. The certificat d'urbanisme opérationnel (detailed planning certificate), for example, states whether your project is feasible and gives information on the existing or planned public facilities (roads and networks) serving the land. It also sets the planning rules that apply to the property for 18 months. It is not, however, an authorisation for specific works.

Depending on the information gathered, your wishes and your time constraints, it may also be possible to agree a condition precedent (condition suspensive) with the sellers. The condition could relate to the regularisation of the necessary planning authorisations, obtaining the certificate of compliance or obtaining new planning permission.

Having your notaire draft the preliminary sale agreement (compromis or promesse de vente) gives you detailed advice from the pre-contract stage and tailor-made clauses suited to the specific features of your transaction. Make the most of it!