FrançaisThe eviction procedure is a legal procedure aimed at forcing a tenant who does not respect one of the essential obligations of his contract to leave the dwelling. This procedure can sometimes be long and complicated with regard to part of the congestion of French jurisdictions but also many pitfalls to avoid.
Preamble: in which case can one request the cancellation and the expulsion of a tenant?
The law of the hiring is governed by the law of July 6, 1989 modified by the law known as ALUR of March 24, 2014. These provisions aim at framing strictly the conditions of the procedure of expulsion.
A) The existence of a resolutive clause.
This law establishes the first condition to authorize the termination of the lease under good conditions: the existence of a resolutive clause. We will see in another article that it is possible to obtain a cancellation of the lease without this clause but the procedure is much longer, random and less frequent.
A resolutive clause is a clause inserted in the lease contract that allows the judge to ask the tenant to terminate the lease if one of the obligations stipulated is not respected by the tenant. This clause is extremely effective because the Judge will be bound by this clause and will have no choice but to terminate the lease if he finds that one of the obligations in the contract has not been respected by the tenant.
B) The breach of an obligation referred to in the resolutive clause
There are three possible reasons for terminating the lease through the activation of the resolutive clause:
Failure to pay within 2 months after a command to pay;
Lack of proof of home insurance;
Serious nuisance in the enjoyment of the places.
Thus, the lease must be properly drafted. The resolutive clause must provide that in case of breach of one of these obligations, the lease contract may be automatically terminated by the Judge.
Now let’s see how the entire procedure works.
I Mandatory pre-trial diligences: issuance of the order to pay and garnishment.
The first step in obtaining the lease agreement resolution is to issue a bailiff command to pay the rent.
Specifically, the bailiff will move on site and issue a command to pay the full rent due and its own costs (which must have previously advanced).
In addition to the payment order, it is also possible to make a provisional seizure on the tenant’s bank account.
This procedure is little known to the litigants but very effective. It aims to block directly on the bank accounts part of the sums due. These sums will then be returned to the owner very quickly after the trial without waiting to force the execution of the decision.
This provisional seizure is made by a request drafted by the lawyer and filed with the Tribunal de grande instance.
After a period of two months, if rents remain due, it is then possible to issue a summons before the District Court ruling in summary.
This assignment will seek to terminate the lease and a payment order.
Of course, it is also possible to claim the reimbursement of incurred legal and bailiff fees.
II The trial
Once the subpoena is issued, your hearing will be scheduled after two months. The day of the hearing, the case can be returned if the file is not able to be judged. Referral cases are accepted when the tenant wants a delay to take a lawyer or prepare his defense.
On the day of the hearing, the parties state their request.
Very often, the tenant makes a request for a payment period of up to 36 months.
If it is in bad faith, the Tribunal will reject these requests.
The tenant will then be sentenced to:
- The termination of the lease;
- Pay the rent due;
- Pay an occupancy allowance corresponding to the amount of the old rent;
- Reimbursing legal fees
- The expulsion.
III The execution of the court decision.
The course is unfortunately not finished after the trial.
Once the court decision in hand,you still have to enforce the judgment.
You must first ask the bailiff to serve the decision. The aim is to remove the appeal deadlines and the possibility of forcing the execution of the decision.
Once the decision has been rendered, you can recover the amounts you have seized on a conservative basis fairly easily if you filed the application before the trial.
Otherwise, if the debtor does not execute himself you can ask the bailiff a seizure on account.
Finally, if the former tenant does not leave him, you can request his expulsion with the assistance of the police force subject to the winter break. In the meantime, he will no longer be regarded as a tenant but as an inhabitant without right or title. He will have to pay an occupancy allowance corresponding to the amount of the old rent.
Do not hesitate to call the office of Master RIBEIRO DE CARVALHO for more information or check his news on his website or on social networks.
