Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

Article L. 142-1 of the Code of Civil Enforcement Procedures only allows the judicial commissioner to enter premises in the event of absence or refusal of access by the occupant, in the presence of the mayor of the municipality, a municipal councilor, a municipal official delegated by the mayor for this purpose, a police or gendarmerie authority, or, failing that, two adult witnesses who are neither in the service of the creditor nor of the judicial commissioner in charge of enforcement. These provisions, specifically intended to govern the situation of the absence of the seized debtor, cannot constitute grounds for invalidity of the seizure and sale carried out at their domicile . Conversely, the opening of the debtor's doors by a person connected to the latter's interests, such as a household employee, who was present during the operations, renders the safeguards of Article L. 142-1 inapplicable . Similarly, the judicial commissioner who encounters no refusal to access occupied premises to carry out seizure operations is not required to seek the assistance of the persons listed in Article L. 142-1 or to request the signature of the employee present .

In the absence of any person on the premises, the presence of two witnesses is necessary. This presence must be effective throughout the operation . The fact that they happen to be real estate expert witnesses does not allow for the conclusion that they are strictly speaking in the service of the judicial commissioner or the pursuing creditor . A report that mentions the assistance of two witnesses is valid even if it appears contradicted by photographs taken from a surveillance device installed at the seized debtor's home, according to which the judicial commissioner seems to have entered alone, as long as they do not show the entire course of the operations conducted by the latter .

The absence of the occupant also necessitates the use of a locksmith. The judicial commissioner who notes in his report that this recourse was made necessary by the refusal of the seized debtor to let him enter and that he proceeded with the necessary warnings, while a police officer attested to the absence of any occupant on the premises during the measure, constitutes a forgery . Similarly, the report of seizure and sale indicating the door was opened by a locksmith, implying the absence of any occupant or a refusal to comply, must be annulled when it bears the signature of the seized debtor's spouse . Under the terms of Article L. 142-2, the judicial commissioner who entered the premises in the absence of the debtor or any person present must ensure the closure of the door or exit through which he entered. Therefore, the officer, who, after conducting a seizure in a private location, had to change the lock damaged by the opening operations, cannot be accused of a disguised eviction .

Finally, in the case of a seizure of assets from a public area, without the need to enter the debtor's residence, the judicial commissioner cannot be accused of violating the provisions of Article L.142-1 of the Code of Civil Enforcement Procedures . Indeed, a report of seizure and sale drawn up by identifying the absent debtor's assets through the windows of their residence, without incurring locksmith fees, does not need to be annulled as long as a detailed description was possible and there is no dispute regarding the nature, ownership, and seizable nature of the assets in question . A report of seizure and sale of assets in a residential premises, without the need to enter the premises, can also be drawn up even when the debtor is present. In such a case, the judicial commissioner must directly provide the warnings required by law regarding any prior seizures and the prohibition on disposing of and moving the seized assets, and, if failing to do so, must be able to explain why they were unable to do so .

Pursuant to Article L. 431-1 of the Code of Civil Enforcement Procedures, the provisions of Article L. 142-1 do not apply in matters of eviction .

CA Montpellier, 20 December 2018, LawLex202300005420JBJ.

CA Paris, 30 September 1999, LawLex202300003077JBJ.

CA Rouen, 18 May 2015, LawLex202300004455JBJ.

CA Grenoble, 5 May 2019, LawLex202300005520JBJ.

See, excluding the necessity of witnesses, CA Colmar, 4 November 2019, LawLex202300005521JBJ; CA Dijon, 19 January 2016, LawLex202300004414JBJ.

CA Aix-en-Provence, 27 June 2019, LawLex202300005480JBJ.

Cass. 1re civ., 7 March 2006, LawLex202300002871JBJ.

CA Paris, 19 March 2015, LawLex202300004416JBJ.

CA Metz, 24 June 2021, LawLex202300005484JBJ.

CA Bourges, 31 May 2018, LawLex202300005519JBJ.

CA Aix-en-Provence, 16 June 2022, LawLex202300005474JBJ.

CA Douai, 11 February 2016, LawLex202300005524JBJ.

CA Reims, 8 December 2015, LawLex202300005969JBJ.

54. Conditions for entering private premises