Concept of Construction Requiring a Permit in Moroccan Law

It is well-established that the Moroccan legislator did not explicitly define "construction" in Law No. 12.90 on Urban Planning. Instead, Article 40 of this law merely prohibits undertaking any construction without obtaining a direct permit. Similarly, Article 7 of the Dahir of July 25, 1960 concerning the expansion of rural agglomerations, stipulates that it is prohibited to erect any building in rural agglomerations with a specific expansion plan without obtaining a construction permit[¹].

It has been customary to leave the task of providing definitions to jurisprudential scholarly effort rather than the legislator. Consequently, legal doctrine has contributed to clarifying the term "construction" as follows:

Some jurisprudential views have defined construction as: "Any structure erected by man, provided it is permanently and non-incidentally affixed to the ground."[²]

Conversely, other views have held that construction refers to "a collection of materials, whatever their type – whether wood, bricks, gypsum, iron, or any combination thereof, or anything else – erected by human hands to be permanently affixed to the ground."[³]

From these definitions, it becomes apparent that construction is characterized by three features:[⁴]

a) – The construction material must be cohesive [⁵], such as bricks, stones, reinforced concrete, or wood mixed with small stones, cement, and gypsum.

b) – It must be man-made from the aforementioned materials. If natural factors lead to its formation, it is not considered a building, even if it is permanently affixed to the ground.

C) The building must be stable[⁶], meaning it must be permanently attached to the land in such a way that it cannot be separated or moved without demolition or incurring damage.

It is irrelevant whether these three characteristics are met above or below ground, regardless of the purpose for which the building is intended, whether residential, commercial, or agricultural. This concept of building applies to real estate by its nature, excluding real estate by designation[⁷].

Based on the foregoing, "the mere stacking of bricks or stones in the form of a wall, or the erection of a wooden house, is not considered a building, due to their lack of permanent attachment to the land. Such attachment may be direct, for example, the construction of foundations in the ground or building on the surface of the land, or indirect, for example, the construction of an upper floor above a ground floor permanently attached to the land."[⁸] In all cases, the material connection to the land, established through permanent attachment, is what defines the legal forms that the construction may take.

❐ Approved Sources:

¹- The urban planning legislators, referred to above, frequently use terms that appear to have a unified meaning, including: "construction", "structure", "structures", "edifices", "buildings", and "works", without providing any explicit indication to define their meaning. This may leave the door ajar for numerous dysfunctions in regulating the construction process, specifically concerning its safety, quality, and urban security. It may also be exploited by some as a pretext for committing suspicious and fraudulent activities during construction.

• Mohamed Hilmi, Moroccan Judicial Practice in Suppressing Urban Planning and Construction Violations, Publications of Masarat Journal for Legal Research and Studies, a peer-reviewed scientific journal, Issue 1 / Academic Works Series (1), 1st Edition, 2021, Page 21.

²- Mohamed Naji Yaqout, Responsibility of Architects After Completion and Accepted Handover of Works by the Employer, Dar Al Nahda Al Arabia, Cairo, 1984, Page 82. Cited by: Abdel Nasser Abdel Aziz Ali Al Sinn, Criminal Liability of Those Undertaking Construction Works - A Comparative Study. 1st Edition, 2014, Mansoura/Egypt: Dar Al Fikr Wal Qanoun, Page 23.

³- Abd El-Razzak El-Sanhuri, Al-Waseet fi Sharh Al-Qanoun Al-Madani (The Mediator in Explaining the Civil Code), Part 1, 2nd Edition, Page 12/3. Cited by: Mohamed Azmy El-Bakri, Maintenance, Renovation, Reinforcement, Partial Demolition, and Total Demolition in the New Construction Law and its Executive Regulations, Cairo/Egypt: Dar Mahmoud for Publishing and Distribution, 2021, Page 26.

⁴- Abdel Nasser Abdel Aziz Ali Al Sinn, Criminal Liability of Those Undertaking Construction Works - A Comparative Study. Supra, 2014, Page 273.

⁵- This refers to the aim of imparting a solid permanence to the elements of construction, as opposed to being temporarily assembled.

⁶- "Stability" here means fixity within its confines.

⁷- Mohamed Azmy El-Bakri, Encyclopedia of Jurisprudence, Judiciary, and Legislation in the New Civil Code. Volume Three, Sources of Obligation - Effects of Obligation. Cairo/Egypt: Dar Mahmoud for Publishing and Distribution, 2018, Page 158.

⁸- Abdel Nasser Abdel Aziz Ali Al Sinn, Criminal Liability of Those Undertaking Construction Works - A Comparative Study. Supra, 2014, Page 273.

 

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