ATA/131/1997•Administrative fine for unlawful change of use upheld
ATA/131/1997Court of Justice / Administrative ChamberFeb 18, 1997Confirmed
Extracted by Omnilex
The court held that administrative fines under the LDTR are penal in nature. A company that signed a lease while changing the use of a dwelling without authorization was liable to an administrative fine because its administrator knew of the new use. The fact that the company did not act out of greed did not prevent sanctioning, especially since the administrator was a lawyer. The CHF 5,000 fine was confirmed.
LDTR art. 7; administrative fines are criminal in nature; unauthorized change of use of a dwelling by a company is punishable when the responsible administrator knew of the new use. The punitive character of the measure requires treatment under penal principles, but absence of greed does not exclude liability where the infringement is knowingly carried out. The professional status of the administrator may be relevant in assessing the sanction, which may be upheld if not disproportionate.
Descripteurs
CONSTRUCTION ET INSTALLATION; AMENDE; CHANGEMENT D'AFFECTATION; DROIT PENAL; TPE
Normes
LDTR.7
Résumé
Les amendes administratives doivent être considérées comme étant de nature pénale. La société qui signe un bail en modifiant l'affectation d'un logement sans autorisation est passible d'une amende dès lors que l'administrateur avait connaissance de la nouvelle affectation. La société n'ayant pas agi par cupidité mais son administrateur était avocat. Confirmation de l'amende de frs 5000.-.
Extracted by Omnilex
Whether administrative fines under LDTR are criminal in nature.
Yes. The court treated the administrative fine as having criminal character.
The fine must be assessed according to criminal-law guarantees because its punitive nature places it within the penal sphere.
Whether the company could be fined for the unauthorized change of use of housing.
Yes. By signing the lease while changing the purpose of the dwelling without authorization, and where the administrator knew of the new use, the company was liable to a fine.
The company’s conduct constituted an unauthorized change of use; the administrator’s knowledge was sufficient to attribute the infringement to the company. The absence of greed did not eliminate liability.
Whether the amount of the administrative fine should be reduced.
No reduction was warranted; the CHF 5,000 fine was upheld.
The court found no basis to disturb the sanction despite the absence of greed, particularly given the administrator’s professional qualifications as a lawyer.
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