REAL ESTATE SALE: CHALLENGE BY THE MAYOR, WHO TOOK PART IN THE SALE OF A PLOT OF LAND BELONGING TO THE MUNICIPALITY TO A SCI OF WHICH HIS WIFE IS THE MANAGER

Sale of municipal property

Statement of facts:

In a resolution passed by the town council on 30 May 1986, the municipality of Monistrol-sur-Loire (Haute-Loire) decided to sell, free of charge, parcels of the rural road belonging to its private domain and passing within the municipal area of Monistrol-sur-Loire. housing estate Domaine de la Rivoire, and agreed to receive, also free of charge, plots of land belonging to the non-trading property company (SCI) DOMAINE DE LA RIVOIRE.

the latter brought an action against the municipality of Monistrol-sur-Loire before the courts to obtain enforcement of this decision.

By judgment, the Tribunal de grande instance du Puy-en-Velay has :

-Stay of proceedings on the applications of SCI DOMAINE DE LA RIVOIRE ;

-and invited the municipality to refer to the administrative court for a preliminary ruling on the legality of the municipal council's decision.

Court of Appeal :

SCI DOMAINE DE LA RIVOIRE appealed against the judgment of 4 November 2009. The Court thus upheld the Monistrol-sur-Loire municipality's claim. It declared the municipal council's decision of 30 May 1986 to be illegal.

On the date of the decision to sell parcels of a rural road free of charge and to accept parcels belonging to a non-trading property company free of charge, the mayor of the municipality was also a partner in the company. SCIwhich his wife managed.

Since the company pursued objectives that were not the same as the interests of the general population of the commune, the mayor, in his capacity as a partner in the SCI, had an interest in the transfer of the plots of land on the rural road that was distinct from that of the commune and must be regarded, within the meaning of Article 5(1) of the Civil Code, as having an interest in the transfer of the plots of land on the rural road.article L. 2131-11 of the French General Code for Local Authorities (Code général des collectivités territoriales) (CGCT, art. L. 2131-11), as having an interest in the matter under discussion.

Although the mayor was not the rapporteur for the project before the municipal council and did not take part in the vote on the disputed resolution, the meeting at which the resolution was adopted was chaired by the mayor and he was present at the vote, which was taken by a show of hands.

In the circumstances of this case, the mayor's participation in this meeting was such as to influence the municipal council's decision.

Solution adopted by the Cour de cassation (Sale of communal property) :

It follows from thearticle 69 of the Rural Code (C. rur., art. 69), now thearticle L. 161-10 of the French Rural and Maritime Fishing Code (C. rur., art. L. 161-10), that communes may not :

-for the disposal of rural roads,

-use a procedure other than the sale procedure.

It follows that the municipal council's decision :

-The purpose was to dispose of portions of the rural road by means of an exchange with a SCI,

-The decision was therefore taken in breach of these provisions and must be declared unlawful.

Conseil d'État, 8th sub-section, 17 November 2010, RG no. 338338