Two rulings of 2023 spell out what counts, and what does not, in the buildability of expropriated land. In Bordeaux, a public development agency argued that a plot in a buildable zone but covered, at the reference date, by a holding perimeter pending an overall development project was worth less, since that perimeter limited construction “drastically”; the Cour de cassation (the French supreme court for civil matters), on 28 September 2023, answers that “only permanent easements and administrative restrictions must be taken into account for the valuation of building land” and that a holding perimeter, being temporary, “does not constitute an element of loss of value”. In the same metropolitan area, a court of appeal had conversely classified as building land a strip of land in the red zone of the flood risk prevention plan, because a “notice” from the State announced its move to the green zone; the Court, on 8 June 2023, quashed: the draft revision had not modified the approved plan, which alone was annexed to the local plan. For the valuer, the rule is symmetrical: neither temporary constraints nor announced relaxations enter the valuation at the reference date.
The facts
In the first case, a plot belonging to a property company is declared transferable in January 2021 to the public development agency Bordeaux Euratlantique, and the expropriation order is made on 30 March 2021. At the reference date, agreed as 26 May 2016, the plot is classified in buildable zone UDp3 of the local plan, but lies within a holding perimeter pending an overall development project which limits building possibilities; that limitation was lifted on 16 November 2017. The Bordeaux court of appeal, on 27 April 2022, refuses to take it into account in setting the indemnity. The agency appealed.
In the second, a local public company expropriates a built plot. The Bordeaux court of appeal, on 27 January 2022, classifies as building land a strip of land detached from the building, although it lies in the red zone of the flood risk prevention plan at the reference date, because that plan is under revision and a State “notice” of 20 July 2016, prior to the reference date, classifies the plot in the green zone, of low hazard. The local public company appealed.
The decision
In the first case, the third civil chamber dismissed the appeal (Cass. 3e civ., 28 September 2023, no. 22-21.012, reported). Article L. 322-4 of the Expropriation Code, which governs the valuation of building land, “does not specify whether the easements to be taken into account at the reference date must be permanent”, whereas article L. 322-2, for valuation according to actual use, retains only “easements and administrative restrictions permanently affecting the use or exploitation of the property”. The parliamentary debates on the law of 18 July 1985 show that the legislature “intended to align” the two regimes: “only permanent easements and administrative restrictions must be taken into account for the valuation of building land”. The holding perimeter, “which is temporary and becomes unenforceable against the owner by the mere passage of time, does not constitute an element of loss of value”.
In the second, it quashed, under article L. 322-3 (Cass. 3e civ., 8 June 2023, no. 22-13.855, reported): “the draft revision of the natural risk prevention plan brought to the attention of the metropolitan authority had not had the effect of modifying the content of the approved natural risk prevention plan, classifying the expropriated plot in an unbuildable zone, which alone was annexed to the local plan”. The case is sent back to the Toulouse court of appeal.
What this changes for valuation
A snapshot at the reference date, with only the documents in force. The classification as building land and the valuation are made at the reference date, generally one year before the opening of the public inquiry, on the basis of the planning documents approved and enforceable at that date: local plan, annexed risk prevention plan, public utility easements. A draft revision, a State notice, a resolution prescribing a modification do not change that snapshot, even if they announce a relaxation that would make the land more valuable. The valuer cites the documents in force with their dates of approval and publication, and expressly sets aside those that are only drafts. The article on the proof of utilities in a development zone describes the other condition of building land, servicing.
Permanent or temporary: the question to ask for each restriction. A holding perimeter pending an overall development project limits construction for at most five years, then lapses by itself; it is temporary and is not deducted. A risk prevention plan, a setback easement, a no-build zone, a reserved site, a protected woodland classification are permanent, in the sense that they do not disappear by the mere passage of time, and they apply. The report lists the restrictions burdening the land at the reference date and characterises each; that list, more than the price per square metre, is what will be debated.
The red zone of a risk plan is a permanent restriction. Land classified as unbuildable by an approved risk prevention plan is not building land, whatever the announced evolution of the plan. It is valued according to its actual use, garden, amenity, appurtenance of the house, with references of non-buildable land, which often gives a price per square metre ten to thirty times lower. The gap is such that classification is, in these cases, the first item of disagreement; the report deals with it before any figures.
The authority’s fraud, the only exception. Article L. 322-4 sets aside administrative restrictions whose institution “reveals, on the part of the acquiring authority, a fraudulent intent”: an easement created to lower the price of land about to be expropriated. The valuer who finds that a permanent restriction was instituted shortly before the operation, by the authority itself, flags it to the judge; it is for the judge to draw the consequences.
The same reasoning for pre-emption. The price of a pre-empted property is set under the same rules of classification and reference date, as recalled by the article on the pre-emption price set by the expropriation judge. The two 2023 rulings therefore apply to it, and the valuer working for a pre-empting public body keeps the same discipline on the documents in force.
What the valuer takes from it
- Only permanent easements and administrative restrictions count in valuing building land; a temporary holding perimeter is not a loss of value.
- A draft revision of a risk prevention plan, even notified before the reference date, does not modify the approved plan annexed to the local plan.
- Classification and valuation are made at the reference date, on the sole basis of the documents approved and enforceable at that date.
- The report lists the restrictions burdening the land and characterises each as permanent or temporary.
- Restrictions instituted by the authority with fraudulent intent are set aside.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide Public bodies: pre-emption, setting a defensible price and the glossary entries date de référence, charge foncière and déclaration d’utilité publique complement this article. On the same theme: Compulsory purchase in a ZAC: who must prove the utilities? and Pre-emption price in France: valued as it stands at judgment. The decisions are available on Légifrance: no. 22-21.012 and no. 22-13.855.
What next
Expropriated land whose buildability is in dispute, between the local plan, the risk prevention plan and temporary perimeters?
I establish the situation of the land at the reference date, document by document, separate permanent restrictions from temporary limitations and value the land as building land or according to its actual use, for the memorandum before the expropriation judge.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
