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

Due to the very serious consequences it has on the debtor's person and living conditions, eviction from a building or inhabited place is subject to much more restrictive conditions than other enforcement measures.

Indeed, the eviction from a building or inhabited place cannot, in principle, be pursued under any writ of execution, but only from a court decision  or an enforceable conciliation repo …

Writ of execution and winter truce

Due to the very serious consequences it has on the debtor's person and living conditions, eviction from a building or inhabited place is subject to much more restrictive conditions than other enforcement measures.

Indeed, the eviction from a building or inhabited place cannot, in principle, be pursued under any writ of execution, but only from a court decision  or an enforceable conciliation report and only after service of an order to vacate the premises . In addition to these two titles, Article L. 322-13 of the Code of Civil Enforcement Procedures adds the judgment of adjudication of the seized property . Outside of these scenarios, no other writ of execution can justify an eviction: this is the case, notably, for a settlement made enforceable by an order of the president of the Judicial Court . It goes without saying that in the absence of any writ of execution, the eviction of a union from premises previously made available to it constitutes a manifestly unlawful disturbance justifying the pronouncement of measures for restoration . However, it is not necessary for the occupants of the place on behalf of the debtor to be expressly mentioned in the title  or to have been personally served with the decision .

Moreover, even if the right of ownership is absolute, and any occupation without right or title of another's property constitutes a manifestly unlawful disturbance allowing an owner to obtain the eviction of an occupant through interim proceedings , Article L. 412-6 of the Code of Civil Enforcement Procedures provides that notwithstanding any eviction decision that has become res judicata and despite the expiration of the deadlines granted under Article L. 412-3, any eviction measure not executed by November 1 of each year must be suspended until March 31 of the following year, unless the relocation of the affected parties is ensured under conditions that respect the unity and needs of the family . This suspension, also known as the “winter truce,” applies to any eviction from residential premises, including those rented as part of a commercial lease , but not to eviction from public property . Furthermore, it is not imposed, according to the second paragraph of Article L. 412-6, when the eviction measure was ordered due to an unauthorized entry into another's home using maneuvers, threats, violence , or coercion. According to the Court of Cassation, the removal of the winter truce benefit for individuals who entered a dwelling by force ensures the necessary balance between the right of ownership and the right to housing . Paragraph 3 of Article L. 412-6 adds that the court may remove or reduce the benefit of the winter suspension when the individuals whose eviction has been ordered entered any place other than a home using the same methods as those mentioned in the second paragraph. Moreover, the eviction carried out during the winter period of an occupant without right or title cannot be challenged when the premises have not been occupied for several months . Finally, if the police authorities are required to suspend, during the winter truce period, the assistance of law enforcement for the eviction of an occupant without title ordered by the judicial authority, nothing prevents them from being validly seized during this same period with a request for assistance, the rejection of which may engage the State's liability after the period's expiration . Similarly, since a penalty payment is not a measure of compulsory enforcement, the provisions of Article L. 412-6, which only provide for a suspension of eviction measures not executed by November 1 of each year, do not prohibit a court, even during the period covered by this text, from ordering the release of the premises with a penalty payment to encourage the debtor to comply with the decision .

On the other hand, since an eviction does not constitute a means of enforcement on movable and immovable property, the eviction of a company whose lease has expired can be requested even if it is under insolvency proceedings . Similarly, the benefit of the winter truce does not apply to occupants of premises specifically intended for student housing when the individuals no longer meet the conditions for which the housing was made available to them , nor to the eviction of a spouse, partner bound by a civil solidarity pact, or violent cohabitant ordered by the family court judge on the basis of Article 515-9 of the Civil Code .

For an illustration, See Cass. 3e civ., 2 July 2013, LawLex202300004131JBJ, holding that the eviction of a tenant cannot be ordered solely on the grounds of the tenant's failure to comply with the order for payment served, but must be based on the finding of the termination of the commercial lease by a decision that has become res judicata.

CA Nantes, 28 February 2002, LawLex202400009151JBJ.

For an illustration, See Cons. d'Et., 27 November 2002, LawLex202400009148JBJ.

Cass. 2e civ., 19 September 2019, LawLex202300011240JBJ.

Cass. 3e civ., 20 November 1991, LawLex202300011599JBJ.

Cons. d'Et., 27 April 2007, LawLex202300010876JBJ.

Cass. 2e civ., 4 July 2007, LawLex202400003783JBJ.

Cass. com., 3 December 2003, LawLex202300004139JBJ.

For an illustration, See Cass. 3e civ., 27 June 2007, LawLex202300004141JBJ. Cf., adopting the opposite solution before Ord. No 2006-461 of 21 April 2006, Cass. 2e civ., 7 March 2002, LawLex202300004140JBJ; 10 July 2003, LawLex202300004134JBJ.

Cass. civ., 20 October 2000, LawLex202300004137JBJ.

Cass. soc., 26 September 2007, LawLex202300010847JBJ.

Cons. d'Et., 25 July 2013, LawLex202300000116JBJ. Similarly Cass. 2e civ., 4 December 2003, LawLex202300004142JBJ.

Cass. 3e civ., 30 November 2005, LawLex202300004138JBJ.

Cass. 3e civ., 21 December 2017, LawLex202300011617JBJ; 4 July 2019, LawLex202300004130JBJ; 28 November 2019, LawLex202400003784JBJ.

Cass. 2e civ., 13 May 2015, LawLex202300004144JBJ. Similarly, Cons. d'Et., 16 May 2007, LawLex202400009147JBJ, considering that the refusal of the prefect to provide law enforcement assistance during the winter truce does not engage the State's liability if it is not established that the rehousing of the evicted spouse can be ensured under sufficient conditions.

CA Paris, 22 April 2003, LawLex202400009149JBJ. Similarly, CA Nantes, 30 May 2002, LawLex202400009150JBJ, holding that the fact that the commercial lease contract excludes occupation of the premises for residential purposes does not exclude compliance with the winter truce when the lessee has de facto used part of the premises for habitation.

5. Civil Enforcement Procedures

157. Writ of execution and winter truce

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157. Writ of execution and winter truce

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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