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

The legislator has enacted specific provisions relating to residential premises or dwellings (local d'habitation), which govern the enforcement of additional guarantees. Under the terms of Article L. 142-3 of the Code of Civil Enforcement Procedures, it is only after a period of eight days has elapsed since a payment order was served by a judicial officer and remained without effect, and upon pres …

Conditions of access to residential premises

The legislator has enacted specific provisions relating to residential premises or dwellings (local d'habitation), which govern the enforcement of additional guarantees. Under the terms of Article L. 142-3 of the Code of Civil Enforcement Procedures, it is only after a period of eight days has elapsed since a payment order was served by a judicial officer and remained without effect, and upon presentation of the enforceable title, that the latter may enter a dwelling and, if necessary, have a locksmith open the doors and furniture in order to carry out the seizure operations. The term “local d'habitation” in relation to the implementation of a seizure and sale, refers to both primary residences and secondary residences .

Pursuant to Article L. 142-3, the forced opening of the doors of a dwelling and a safe requires a writ of execution or, in the absence of such a writ, authorization by a judge . The judicial commissioner with a writ of execution does not commit a violation of domicile when, in the absence of the debtor, they have the door opened by a housekeeper . However, the provisions of Article L. 142-3 do not apply to interim protective measures. Indeed, notwithstanding the placement of this text in Book 1 of the Code of Civil Enforcement Procedures, titled “general provisions,” its very wording, which requires that entry into a place used as a dwelling and the possible opening of doors and furniture be preceded by an order for seizure (commandement)  and that the judicial commissioner has a writ of execution, excludes its application to an interim protective measure, which, pursuant to Article L. 511-1 of the same code, does not require the prior issuance of a commandement and can be carried out without a writ of execution. Nevertheless, while Article L. 521-1 allows the creditor to proceed with the protective seizure of the debtor's assets located in a place used as a dwelling and, if necessary, proceed with the opening of doors and furniture, the constitutionally protected right to respect for private life and the inviolability of the home, also enshrined by Article 8 ECHR, excludes such a measure from being carried out without authorization given by a judge .

Furthermore, Article 432-8 of the Criminal Code penalizes the act of a person holding public authority or entrusted with a public service mission, acting in the exercise or on the occasion of the exercise of their functions or mission, entering or attempting to enter another's home against the will of the occupant, except in cases provided by law. The violation of domicile is punishable by two years of imprisonment and a fine of EUR 30,000. According to the plenary assembly of the Court of Cassation, a judicial commissioner judicial commissioner holding an writ of execution, who enters through an open window on the ground floor of a residence whose occupants are absent and whose doors are closed does not violate these provisions .

Cass. 2e civ., 18 June 2009, LawLex202200010744JBJ.

CA Paris, 6 September 2018, LawLex202300002843JBJ; CA Paris, 31 May 2018, LawLex202300005523JBJ.

Cass. crim., 16 June 2004, LawLex202300000298JBJ.

Cass. 2e civ., 17 September 2020, LawLex202200010418JBJ.

Cass. ass. plén., 16 December 1974, LawLex202300003125JBJ.

5. Civil Enforcement Procedures

55. Conditions of access to residential premises

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55. Conditions of access to residential premises

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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