Two owners of land in Saint-Tropez, designated as a reserved site for a public green space, force the municipality to buy it: this is the right of surrender (droit de délaissement, the owner’s right to require a public body to purchase land it has reserved). The expropriation judge sets the price in 1983: 800 000 francs, or 121 959 €. Twenty-five years later, the municipality, having changed the planning rules and made the land buildable, resells it for 5 320 000 €. The sellers’ heir claims compensation. The Cour de cassation (the French supreme court for civil matters), on 18 April 2019, held that there is no right of retrocession after a surrender, but that depriving the former owner of any compensation “is an excessive interference with the right to the peaceful enjoyment of possessions” guaranteed by the first protocol to the European Convention on Human Rights. The court on remittal awarded 4 907 014.58 €, and on 10 June 2021, in a second reported decision, the Court dismissed the municipality’s appeal: the four-year limitation period, raised too late, does not apply, and the proportionality review has already been carried out. For the valuer, the two rulings open a valuation assignment at two dates, under two planning regimes.
The facts
Two owners hold a plot located in a reserved site under the land-use plan, intended for green spaces. They serve notice on the municipality to acquire it under former article L. 123-9 of the Planning Code. No agreement being reached on the price, a judgment of 20 September 1982 orders the transfer of ownership and a ruling of 8 November 1983 sets the price at 800 000 francs. The land remains for twenty years a green space open to the public, then serves as a children’s playground from 2002 to 2008. On 22 December 2008 the municipality resells it for 5 320 000 € to a private buyer, having made it buildable; a building permit is issued on 18 October 2011.
On 29 October 2013 the sellers’ successor sues the municipality for damages. The Aix-en-Provence court of appeal, on 28 September 2017, dismisses the claim: no retrocession is possible after a surrender, and there was no declaration of public utility. After the quashing, the Lyon court of appeal, on 19 November 2019, orders the municipality to pay 4 907 014.58 €. The municipality appeals again.
The decision
The first ruling (Cass. 3e civ., 18 April 2019, no. 18-11.414, reported) first confirms that the surrender, “being a purchase requisition at the initiative of the owner of the property, does not allow the transferor to seek retrocession”, and that, absent a declaration of public utility, the former owner “could claim neither retrocession of the land nor compensatory damages” under the Expropriation Code. But, under article 1 of the first protocol, it quashed: the measure, “in that it deprives of any compensation, following the absence of a right of retrocession, the owner who exercised the right of surrender over land placed in a reserved site and therefore unbuildable, then resold after being declared buildable, constitutes an interference”; the municipality, “without maintaining the allocation of the property to the public-interest purpose that justified its reservation, changed the planning rules before reselling the land, which it had made buildable, to a private person, for a price of 5 320 000 euros”; “despite the period of more than twenty-five years between the two deeds, the contested measure is an excessive interference with the right to the peaceful enjoyment of possessions”.
The second ruling (Cass. 3e civ., 10 June 2021, no. 19-25.037, reported) dismisses the municipality’s appeal. The claim, “arising from the deprivation of the added value generated by the resale of the plots, concerned a debt subject to the four-year limitation period” of the Act of 31 December 1968, but the municipality raised it only before the court on remittal, too late. As to the amount, “since the Cour de cassation itself carried out a proportionality review, the ground of appeal, which seeks to call into question the proportionality review carried out, superfluously, by the court of appeal on remittal, is ineffective”.
What this changes for valuation
The loss is the added value the transferor was deprived of. The Court names it as such: “the deprivation of the added value generated by the resale”. Its measure is the gap between what the land was worth, made buildable, at the date of resale, and what the owner received, assessed in value at that same date. The report therefore reconstructs two values: that of the unbuildable land in a reserved site, at the date of transfer, and that of the buildable land at the date of resale, under the planning rules applicable to each. The resale price, 5 320 000 €, is strong evidence but not self-evident: it is checked by comparison and by a residual appraisal, because a price negotiated between a municipality and a developer may depart from value. The glossary describes the bilan promoteur and the date de référence.
Indexing the price received matters. Comparing 121 959 € of 1983 with 5 320 000 € of 2008 without adjustment would be wrong: the price received is expressed in 2008 value, through a property price index or, failing that, the construction cost index or inflation, and the report states which one it uses and why. That is what separates a real added value from a mere monetary effect. The amount awarded by the court on remittal, 4 907 014.58 €, shows that most of the gap came from the change in buildability, not from monetary erosion.
Retrocession and added value: two mechanisms, one question of dates. After an expropriation, retrocession under article L. 421-1 allows the property to be recovered if it has not received its intended use within five years; when it has become impossible, the added value is computed between two dates, as shown in the article on retrocession made impossible. After a surrender there is no retrocession, but protocol 1 leads to compensation founded on the same idea: the public body does not keep the added value of a rezoning it decided itself. The valuer distinguishes the two bases, but quantifies in the same way: value at resale less the value received, updated.
The reference date at the transfer is not in dispute here. The 1983 price was set according to the actual use and the planning rules of the time, unbuildable land in a reserved site, as the reference date requires. The article on the reference date in a development zone and under the urban pre-emption right describes that mechanism; the article on the three rulings of spring 2026 deals with land reserves. Those rules protect the public body at the time of purchase; the 2019 and 2021 rulings protect the owner at the time of resale.
A time limit to watch. The claim against the municipality is time-barred after four years from the first day of the year following the resale; here the municipality forgot to raise it at first instance. A valuer instructed in such a case flags the date of the resale and that of the permit, because a valuation is useful only if the action is still open. The guide Public bodies and pre-emption: setting a defensible price describes these cases from the public body’s side.
Without a retrocession action, no added value. Compensation under the first protocol presupposes that the owner had no other route. In a reported ruling of 19 March 2020 (Cass. 3e civ., no. 19-13.648), the Court held that “the expropriated owner who did not bring the retrocession action open to them, within the time limits and conditions laid down by law, has no action for compensation for the deprivation of the added value acquired by the property not allocated to the use provided for by the declaration of public utility, since, because of their own inaction, they bear no excessive burden”. An expropriated owner who could have sought retrocession and did not cannot therefore claim the added value; the former owner who surrendered the land had no such route.
Once outside the ZAC, no right to require purchase. In a reported ruling of 21 December 2017 (Cass. 3e civ., no. 16-26.564), the Court approved the rejection of a claim to require purchase of a building which the municipality had excluded from the ZAC perimeter by a resolution published before the judgment, the court of appeal having “rightly held that, no more than its creation, the amendment of the ZAC did not require a prior amendment of the local plan”. And in a reported ruling of 29 June 2017 (no. 16-14.622), it held that withdrawal from pre-emption is not late as long as the judgment setting the price, under appeal, is not final. The article on pre-emption in 2017 presents those rulings.
What the valuer takes from it
- After a surrender, there is no right of retrocession, even if the land has not received its intended use.
- But a municipality that makes the land buildable and resells it at a high price, without maintaining the public-interest allocation, must compensate the former owner under the right to peaceful enjoyment of possessions.
- The loss is the deprivation of the added value generated by the resale: value of the buildable land at resale, less the price received, updated.
- The report establishes the two values at the two dates, under the planning rules of each period, and checks the resale price by comparison and residual appraisal.
- The claim is time-barred after four years; the limitation must be raised at first instance.
Further reading
The Compulsory purchase and pre-emption page describes the assignment, its timescale and its fee. The guide Public bodies and pre-emption: setting a defensible price and the glossary entries expropriation, date de référence and bilan promoteur complement this article. On the same theme: Retrocession impossible: added value between two dates and Compulsory purchase: ordered works, common parts, land reserve. The decisions are available on Légifrance: no. 18-11.414 and no. 19-25.037.
What next
Land sold to a public body under a reserved-site designation, then rezoned and resold, and an added value to establish?
I reconstruct the value of the land at the transfer and at the resale, under the planning rules applicable at each date, and quantify the added value the former owner was deprived of, for the court or for negotiation with the public body.
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