21. Taking Legal Proceedings
There are three different legal remedies available for the recovery of arrears of rent.
The three remedies are:
- 21.1 Injunction
- 21.2 Distraint
- 21.3 Possession Proceedings
These different remedies are not mutually exclusive and it may well pay you to use them in conjunction with one another.
Top Tip!
If you have taken out insurance against the non-payment of rent, then you may well find that, under the terms of the contract, responsibility for recovery of rent arrears rests with the insurer. In which case, you merely need to ensure you comply with the terms of that contract to be relieved of the resonsibility of having to bring any proceedings yourself.
If you have not taken out insurance then, before you decide on any course of action, make an appointment to discuss the case with the local huissier de justice (official bailiff), whose contact details you will find in the local yellow pages, called pages jaunes. Be careful of charges imposed by them as their costs can easily mount up.
21.1. Injunction
It is possible to apply to a court for an injunction against the tenant to pay the rent.
The procedure is called an injonction de payer.
It is quick, inexpensive and simple to execute, and the government have more recently reinforced the rights of landlords to use injunctions.
However, the use of injunctions proceedings alone does not enable you to recover possession of the property, and neither does it guarantee payment of the rent.
Where judgement is obtained, but the tenant refuses or is unable to pay, then it is possible to proceed to distraint of goods or obtain access to bank funds or salary.
The use of an avocat is not required to bring the action before the court. There is pre-printed form that can be used to bring the case, which you can obtain from the local court.
Nevertheless, unless you feel competent to be able to do so yourself, you would be well advised to seek legal assistance.
The hearing takes place before a Tribunal d’instance, where, of course, the claim can be contested by the tenant.
You will need to provide clear evidence of the debt, including copies of registered letters sent to the tenant demanding payment of the rent and a copy of the tenancy agreement.
21.2.Distraint
In theory, the use of distraint (called saisie) on goods and funds is a easy and inexpensive procedure.
Unfortunately, it does not always work out in practice to be the case, either because there is a successful challenge to the action, or because the tenant may not have funds and goods against which you can distrain!
You need to engage the services of a huissier to conduct the process, who will need to see some proof of the arrears of rent and any attempts by you to secure payment, e.g. registered letter(s) seeking payment.
The first stage of the process is called the saisie conservatoire. The huissier will endeavour to arrange for the bank account(s) of the tenant to be blocked, as well as an injunction preventing the sale of furniture or other effects. No court order is required, provided the tenancy is in writing, although the tenant can challenge the proposed action in court.
This act alone may well bring the result required.
If not, the huissier would need to obtain a court order to to execute the distraint by obtaining an order for access to the bank funds, or selling of furniture or other belongings. This part of the process is called the saisie executoire.
Not all furniture and personal belongings can be distrained. The tenant is entitled to keep a minimum amount of furniture and belongings, as well as items required for their employment.
Top Tip!
If the tenancy agreement was prepared and signed in front of a Notaire, then no court order is required to execute the distraint, although, in practice, a tenant can apply to the court for a stay of execution.
It is also possible, with a court order, to obtain distraint against salary or social security payments, but there are limitations on the amount that can be distrained in order to protect the welfare of the family. The tenant is required to be left with a minimum income, which will vary according to their family circumstances.
In either case a tenant can make application to the court for the action to be nullified if they consider it is not valid or is abusive.
21.3. Possession Proceedings
The legal process for possession of the property is complicated and lengthy.
The right to a home is part of the French constitution and, in recent years, the Government has adopted a range of measures to minimise the number of evictions that take place.
Where the tenant is involved in bankruptcy proceedings, then eviction proceedings can be suspended, a tactic adopted by some tenants to draw out the whole process.
The Government has also urged all préfectures to ensure that every step possible is taken to protect tenants from eviction.
However, what the government says at a national level is often ignored by other tiers of government, so there is widespread variation in the stance taken by local courts and préfectures in possession and eviction proceedings.
Despite the local differences, no eviction of a tenant can take place without a court order.
There is a presumption of good intent on the part of non-paying tenants and judges have wide discretion to delay any eviction even should judgement be found in favour of the landlord.
Accordingly, if you are proposing to let out a property other than on a seasonal basis you are well advised to carefully select your tenant and take out appropriate precautions against the non-payment of rent e.g. insurance
21.3.1. Use of a Huissier
The process of recovering possession begins by engaging the services of a huisser who will effectively take care of the whole process for you, although, be warned, you will pay for their services.
A demand to pay is delivered by huissier and the tenant has two months (one month for furnished lettings) to regulate arrears before legal procedures can be commenced.
In event of continued non-payment then the huissier will inform the tenant of proposed possession proceedings, and make application to the tribunal for a hearing.
A copy of the notice must be sent to the préfecture who will initiate a social report on the tenant that will be used in court.
Independantly of these proceedings, the tenant can make application to the court for relief from the payment of rent for up to two years.
21.3.2. Court Hearing
The court hearing will be held no sooner than two months later, although due to delays in court system it is not unusual to wait a year or more, depending on the locality.
The hearing will be before the Tribunal d’instance where it is not necessary to engage an avocat. You will need to take the advice of the huissier whether, in the circumstances, an avocat is considered necessary.
The court hearing will require both the presence of the landlord and the tenant.
The decision of the judge is later formally communicated by the huissier.
The judge will normally grant a possession order, but on a suspended basis, provided the tenant adhers to a repayment plan.
The tenant and landlord each have a month to appeal against the decision.
21.3.3. Appeal
If an appeal does take place, and the judge decides possession should be granted to the landlord then the tenant has two months to vacate, or seek a delay from another judge, called the Juge de l’Exécution.
This judge can grant a delay on eviction of between three months and three years!
In coming to their decision the judge will take into account both the circumstances of the tenant and the landlord, e.g. age, health, family composition, financial situation and rehousing options for the tenant.
Where the court has been agreed a repayment plan with a tenant, which has not been adhered to, more often than not a possession order will be granted without further delay.
There is a right of appeal for both parties against the decision of the judge.
21.3.4. Préfecture
Within the two month period granted for the tenant to vacate, the huissier will then seek to enforce the possession order, although they cannot oblige the tenant to leave by force.
If the tenant refuses to leave the property, then the huissier is obliged to seek assistance from the Préfecture to use police to enforce the eviction.
The préfecture have two months to respond to the request. A further social report will be prepared.
If the préfet agrees that the eviction should proceed, the tenant has one month to remove any belongings from the property.
However, the préfecture have the right to refuse to engage the police to enforce the eviction order if they consider the family to be 'at risk'. Whilst local practice does vary, it is not unusual for the local préfet to refuse to implement the court order.
In these circumstances the landlord (through the hussier) can go to the Tribunal administrative and seek compensation for the loss of rent (past and future) from the government. This does occur on a not infrequent basis, and each year it costs the government millions in compensation payments to landlords!
If this happens to you, do not hold your breath about an early payout or full compensation!
If you need to go to a court to get compensation from the government, then it might be several years before there is a hearing and you are unlikely to receive the full arrears you are owed as the court will make their own estimation of your real loss, including a revision of the actual rental calculation if they consider the rent payable to be above local market rents.
It is normally possible to negotiate an earlier settlement directly with the préfecture, but, in such circumstances, you can expect to receive no more than 70% of the arrears of rent. The government justifies such a stance as the landlord is being indenified earlier than would otherwise be the case, despite the fact that it was they who refused to enforce the court decision. It is a complete scandal.
La Tréve Hivernale
During the period 1st Nov to 15 March in the regions (and between 15th Oct to 1st April in Paris) no evictions are permitted, unless alternative housing available or unless the property is in a dangerous condition or the occupants are squatters.
21.3.5. La Réferé
In exceptional circumstances it is possible to go to court for an urgent decision, called la réferé.
The hearing takes place in front of a Juge des référés at the Tribunal d’instance.
You need to approach a huissier in the first instance. There is no need for avocat.
The decisions are considered to be of a provisional nature, in circumstances which are clear.
If urgency and clarity do not apply the judge will refer the case to the main court.
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