An owner whose land is frozen by a reserved site (emplacement réservé, land earmarked in the local plan for public use) can force the public body to buy it: this is the right of surrender (droit de délaissement). If the municipality then makes the land buildable and resells it for far more, can the former owner, who has no right of retrocession (rétrocession, buying back land not used for its intended purpose), obtain redress? Yes, answered the Third Civil Chamber of the Cour de cassation (the French supreme court for civil matters) in a reported decision of 18 April 2019: depriving that owner of any compensation “is an excessive infringement of the right to the peaceful enjoyment of possessions” (translated from the French). For the valuer, the case turns on two values, at two dates.
The facts
Two owners of a plot of land in Saint-Tropez, designated as a reserved site for green spaces under the land-use plan (plan d’occupation des sols), served notice on the municipality to acquire it, under the surrender procedure then provided by article L. 123-9 of the French Planning Code. Failing agreement on the price, a judgment of the expropriation judge (juge de l’expropriation) of 20 September 1982 ordered the transfer of ownership and a ruling of 8 November 1983 set the purchase price. The transfer took place for 800,000 francs, or €121,959.21.
On 22 December 2008, after changing the planning rules and making the land buildable, the municipality resold it for €5,320,000 to a private person; a building permit followed on 18 October 2011. The successor in title of the original owners sued the municipality for damages. The Aix-en-Provence Court of Appeal, on 28 September 2017, confirmed that her action was admissible but dismissed her claim. Her appeal relied on a right of retrocession and then, in a new argument admitted because it was purely legal, on the right to the peaceful enjoyment of possessions.
The decision
The Cour de cassation quashed the ruling, except on the admissibility of the action, and remitted the case to the Lyon Court of Appeal (Cass. 3e civ., 18 April 2019, appeal no. 18-11.414, reported).
No retrocession. The Court recalled having held that exercising the right of surrender, “being a purchase requisition at the initiative of the owner of the property, does not allow the transferor to seek retrocession of that property” under article L. 12-6 of the Expropriation Code then in force. The Court of Appeal had found that “it was not established that a public utility order for the acquisition had been made by the administrative authority”; yet an amicable transfer preceded by a declaration of public utility (déclaration d’utilité publique) can, under the case law the Court recalls, open retrocession. The Court of Appeal had therefore “rightly held” that the successor “could claim neither retrocession of the land nor a compensatory indemnity” on that basis.
But an excessive infringement of the right to property. Under article 1 of the First Additional Protocol to the European Convention on Human Rights, the Court held that the surrendered plot “constitutes a protected possession”. The measure depriving of any compensation the owner who surrendered property “placed in a reserved site and therefore unbuildable, then resold after being declared buildable” is, according to the Court, an interference with the exercise of that right. That interference pursues a legitimate aim: allowing the public body to hold, without any time constraint, a property its owner compelled it to acquire.
That left proportionality, which the Court assessed itself. 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”. Therefore, “despite the period of more than twenty-five years between the two deeds, the contested measure is an excessive infringement of the right to the peaceful enjoyment of possessions” of the successor, and the Court of Appeal, by dismissing her claim for damages, breached that provision.
The principle, not the measure. The reasons fix neither the amount nor the method of calculating the compensation, which are left to the court on remittal; the Bulletin headnote nonetheless refers to the “Loss of the added value generated by the reserved land”. The rest of the dispute, on the four-year limitation period and the proportionality review, is discussed in Lost added value after land surrender: the four-year time bar.
What this changes for valuation
Value facts in the balance. The infringement was found excessive on precise facts: land acquired unbuildable, a public-interest allocation abandoned, a rezoning decided by the municipality itself, a resale to a private person for more than forty times the €121,959.21 received, in nominal terms. The report documents each of these points from the deeds and planning documents.
Two values, at two dates. The compensation still has to be measured. The transfer price was set by a court ruling of 8 November 1983, under the valuation and planning rules of the time, which the report reconstructs from that ruling. The value at resale is established for buildable land, with the zoning and market evidence of that date. The price received is expressed at that same date through an index the report names and justifies, then the gap is broken down: monetary erosion, movement of the land market, change in buildability.
The resale price is checked. The €5,320,000 is strong evidence, but a price agreed with a public body may include terms specific to the operation: the report tests it against sales of comparable land and against a residual valuation (bilan promoteur).
Neighbouring solutions that fit together. An expropriated owner whose retrocession has become impossible obtains added value measured between two dates, as explained in the article Retrocession impossible: added value between two dates, unless, under a reported ruling of 19 March 2020 (no. 19-13.648), they failed to bring the retrocession action; the owner who surrendered the land had no such route. In 2016, the seller of pre-empted land, who had taken the initiative of selling, obtained nothing: Pre-empted land resold: no lost added value for the seller. In 2019, the Court nonetheless noted that a surrender is a purchase requisition at the owner’s initiative, yet still found an excessive infringement. Finally, for a land reserve (réserve foncière), a ruling of 12 March 2026 rules out lost added value when a public-utility reason justifies the failure to carry out the operation: Land reserve: no lost added value when the delay is justified. In 2019, by contrast, the allocation had been abandoned.
What the valuer takes from it
- After a surrender, a purchase requisition at the owner’s own initiative, the transferor cannot seek retrocession.
- A municipality that abandons the public-interest allocation, makes the land buildable and resells it to a private person for a far higher price must compensate the former owner, even where the resale comes more than twenty-five years after the transfer.
- The ruling settles the principle, not the measure: the report establishes the value at the transfer and at the resale, under the planning rules of each date.
- The price received is updated by a justified index, and the resale price is checked by comparison and residual valuation.
Further reading
The Compulsory purchase and pre-emption page describes the assignment and its fee. The guide Pre-emption by a public body in France: setting a defensible price and the glossary entries expropriation, date de valeur and bilan promoteur complement this article. The rest of the same dispute: Lost added value after land surrender: the four-year time bar. On the same theme: Pre-empted land resold: no lost added value for the seller and Right to require purchase in a ZAC ends once property is excluded. The decision is available on Légifrance.
What next
Land surrendered to the municipality, then made buildable and resold?
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 gap with the updated price received, for the court or for negotiation with the public body.
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