Legal Question in Landlord & Tenant Law in France

The legal process for possession of a French rental property is complicated and lengthy.

The right to a home is part of the French constitution and, in recent years, the French 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 pr�fectures 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 pr�fectures 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

22.3.1. 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 pr�fecture 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.

22.3.2. 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.

22.3.3. 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�Ex�cution.

This judge can grant a delay on eviction of up to one year.

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.

22.3.4. Pr�fecture

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 Pr�fecture to use police to enforce the eviction.

The pr�fecture have two months to respond to the request. A further social report will be prepared.

If the pr�fet agrees that the eviction should proceed, the tenant has one month to remove any belongings from the property.

However, the pr�fecture 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 pr�fet to refuse to implement the court order.

In these circumstances the landlord (through the huissier) can go to the Tribunal administratif 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 pr�fecture, 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 Tr�ve 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.

22.3.5. Le R�f�r�

In exceptional circumstances it is possible to go to court for an urgent decision, called le r�f�r�.

The hearing takes place in front of a Juge des r�f�r�s at the Tribunal d�instance.

You need to approach an avocat (french solicitor or attorney). Here is a firm of France-based English-speaking lawyers: http:www.ecdas.com