A rental eviction is forcing a tenant and his family to vacate their accommodation through legal proceedings.
As the district court is competent to hear disputes relating to residential leases, it is the district judge who will pronounce the eviction.
The housing eviction procedure is governed by law n ° 89-462 of July 6, 1989 and law ALUR n ° 2014-366 of March 24, 2014, which completes the system by creating the offense of illegal eviction (article 226-4-2 of the Criminal Code), as well as Articles 153-1 and 412-1 to 412-8 of the Code of Civil Enforcement Procedures.
No eviction can take place during the winter break either from November 1 to March 31. But this will not prevent donors from initiating or continuing eviction proceedings underway during this period. Even occupants without rights or titles (squatters), unless the judge decides otherwise, also benefit from the winter break. However, the truce will not be applied if rehousing is already planned for the evicted tenant or if the building threatens to ruin (peril decree signed by the mayor).
1- Cases allowing the eviction of a tenant
Leave to sell
The owner wants to repossess the property in order to sell it.
The owner wishes to take over the accommodation to live there or to accommodate a member of his family
In these first two cases, the owner having good reasons to take back his accommodation, (it must be imagined that he himself has financial difficulties and that he only has this property to rehouse him, or a member of his family), the eviction could hardly be called into question (except to demonstrate that he lied and that the accommodation was re-let to third parties).
Leave for serious or serious reasons
The eviction of the tenant will only be authorized in 3 cases
Lack of insurance
If the lease contains a termination clause, the lessor can issue a command to have to prove insurance. This order gives rise to a period of 1 month (article 7 of the law of July 6, 1989) at the end of which the summons to terminate the lease can be issued if no proof is produced, "without an imposed deadline" between the summons and the hearing and without notification to the Prefect. In the event of an insurance default, only the lessor can reverse his decision and decide to enter into a new lease with the lessee.
Conviction of the tenant for nuisance, neighborhood disturbances
As it is a court decision, it can only be challenged by appealing against the judgment pronouncing the expulsion.
In these first two cases, the room for maneuver is limited because the eviction punishes a serious fault on the part of the tenant. But it is different for the tenant threatened with eviction due to financial difficulties
Non-payment of rents, charges
All it takes is an unpaid rent for the lessor to be entitled to take action against his tenant.
This does not mean that the eviction procedure will be carried out from the first payment default (in fact, the procedure can extend over several years). In fact, before taking legal action, the lessor must do everything possible to recover the sums due from the surety or his insurer. If the tenant receives a housing allowance, he can also contact the paying agency and request that the allowance be paid directly to him.
To know :
The tenant who does not manage to pay his rent will see his problems accumulate. Indeed, if he receives the housing allowance (ALF, ALS, APL) it should be known that the owner can notify the CAF or the MSA of the slightest payment default (2 consecutive months without paying). This will have the effect of immediately suspending the payment of allowances and… worsening the debtor's financial situation.
So, in the event of difficulty paying rent, the tenant has no time to lose. He must act quickly in order, at best to regularize the situation and at worst, to gain time in order to relocate in good conditions.
2- First reflexes when faced with the threat of expulsion
In the event of financial problems, several options are to be considered before the judicial machine sets in motion.
The amicable settlement
If it is a private lessor, the first solution is to contact him as soon as possible, before he goes to the bailiff or takes legal action, and to find an amicable arrangement to pay the debt. . In case of refusal, your steps (prefer registered mail) will attest to your good faith when the time comes to ask the judge for delays. They could even be homologated if the owner who had initially given his agreement then took it upon himself to reverse his decision.
If it is a social landlord, the tenant can request an amicable schedule at any time.
Even if the eviction procedure is in progress, you can sign a memorandum (a written commitment) in which you agree to repay the debt, in addition to the payment of the current rent, over two years (maximum). You will need to send the proposal by registered mail and a copy to the prefecture services. If the lessor accepts and the deadline is respected, the lessor can enter into a new lease. But in the event of non-compliance, the expulsion procedure will resume immediately.
The Enforceable Right to Housing (DALO)
This right can be implemented by anyone under the threat of eviction without the possibility of rehousing. It can be done at any time during the eviction process. You must seize the DALO commission which will examine your file. If it recognizes you as a priority for obtaining accommodation, the prefect must relocate you within 3 to 6 months. The deadlines are different according to the departments. But the principle is that if the prefecture does not relocate you before the expulsion, you can appeal to the administrative courts.
The Housing Solidarity Fund (FSL)
This solidarity fund helps tenants in difficulty to pay all charges and expenses inherent in housing. The following can benefit from it: The tenant, the sub-tenant, the owner who lives on the premises, the person lodged free of charge, the residents in hostels.
The award conditions differ from one department to another, so do not hesitate to contact them (with the CAF or the department's social services) to find out about the award conditions and the amount of the assistance that may be granted. Generally, the aid amounts to 3 rents. This is why we must act quickly, because the more the debt increases, the more difficult it will be to regularize the arrears of rents.
You should know that the FSL is a one-off aid and that it is not legal. Thus, even in great difficulty, we can refuse it. (In particular when the amount of the rent is too high, or even greater than the resources of the tenant. It will have to be explained on this disparity which supposes at worst undeclared income and at best the material impossibility of being up to date of rents).
The over-indebtedness file
The rent debt can be integrated into the plan. Very often, there is a moratorium of 6 to 24 months, to allow the debtor to pay off rental debts, maintenance and tax debts (which cannot be included in the plan). If the judge (either the JEX or the magistrate, depending on the jurisdiction) approves the plan, you may benefit from payment delays which will suspend the expulsion procedure. On the sole condition of respecting the plan (failing this, the owner may request the revocation of the plan in his regard and resume the eviction procedure).
3- The command to pay
Before implementing the cancellation clause or going to court for eviction, the landlord must serve the tenant with a command to pay. It is the first act of the eviction procedure.
The tenant will then have 2 months to regularize the arrears of rent or to seize the district court in order to request a period of payment which cannot exceed 2 years.
During this hearing, the judge will ask the debtor what he intends to pay in addition to the current rent to pay off the debt. Often, the tenant believing to do well, commits on too high amounts compared to his current expenses, whereas it is about a long distance race. At the slightest default, or delay, in payment, even the most insignificant, the eviction procedure resumes. It is therefore necessary to think carefully about its repayment capacity before committing to the judge. Because no further delay will be granted later.
In the absence of payment or of a response at the end of the 2 months of the order to pay, or failure to respect the deadline granted by the judge, the owner may therefore refer the matter to the judge of the district court. purposes of eviction.
4 - The hearing for the purposes of deportation
Two cases may arise depending on whether or not the lease provides for a termination clause.
The lease contract provides for a termination clause
The owner will simply ask the judge to apply the clause. Once it is noted that the tenant has not fulfilled his contractual obligations, the lease will be terminated automatically.
Any clause providing for the automatic termination of the rental contract for non-payment of rent, or charges under the agreed terms, or for non-payment of the security deposit only has effect two months after an unsuccessful order to pay. This leaves the tenant 2 months to pay or enter the FSL ...
In the absence of payment, the bailiff will send the tenant a summons for the purpose of noting termination before the District Court of his place of residence. The hearing will take place, at a minimum, within 2 months of the summons. Or the time necessary for the bailiff to inform the prefecture of the current eviction procedure in order to find a payment or rehousing solution.
This provision is provided for in paragraph 2 of article 24 of the law of 6 July 1989: " Under penalty of inadmissibility of the request, the summons for the purpose of noting the termination is notified at the behest of the judicial officer to the representative of the State in the department, by registered letter with request for acknowledgment of receipt. , at least two months before the hearing, so that he can refer, as necessary, the bodies responsible for housing aid, the Solidarity Fund for housing or the relevant social services. "
Judicial termination of the lease
If there is no termination clause in the contract (Very rare, but anything is possible!), The lessor must act in pronouncing the termination of the lease, and not in recording this termination (since the clause does not exist). not!).
This request cannot be examined in summary proceedings, only the district court has jurisdiction to examine the case on the merits.
The office of the magistrate
The judge will assess the good faith of the tenant based on his financial difficulties, the age of the debt, its amount, its rehousing difficulties ... and may:
- Or grant a payment period of up to 3 years for leases entered into after May 27, 2014, and up to 2 years for leases entered into before this date.
- Or pronounce the termination of the lease and the eviction of the tenant
To know :
Legal obligations weigh on the lessor who initiates eviction proceedings against a tenant who receives housing allowance.
Private landlords: In the event of payment of housing assistance (APL, etc.), the owner must notify the CAF or the MSA of his legal proceedings 2 months before going to court.
Social landlords: Article L353-15-1 of the Construction and Housing Code provides that for the application of Article 24 of Law No. 89-462 of 6 July 1989, “the donor organizations, for their homes covered by an agreement concluded in application of Article L. 351-2 (rental accession, etc.) and whose tenants benefit from personalized housing assistance, cannot be delivered, on pain of inadmissibility of the request, a summons for the purpose of noting the termination of the lease before the expiration of a period of three months following the referral to the committee mentioned in article L. 351-14 in order to ensure the maintenance of the payment personalized housing assistance, unless the decision of this committee is made before the expiry of this period ”.
Concretely, before any assignment for the purpose of terminating the lease, social landlords must contact the departmental section of public housing assistance (SDAPL) of the departmental housing council, if the tenant is a beneficiary of the APL or the paying agency. (CAF most often, or MSA) if the tenant is a beneficiary of one of the housing allowances. In all cases, it is a question of finding a solution to pay off the rent debt or to rehouse the tenants.
The two-month deadline imposed for all private landlords is therefore extended by an additional three months for social landlords. This period may be reduced if the decision of the committee or body concerned is made before the expiration of the three-month period.
5 - The remedies
The tenant has 1 month to appeal against the eviction judgment rendered by the magistrate. As the appeal is not suspensive, the expulsion procedure will continue during the appeal.
Only the First President of the Court of Appeal will have the competence to stay the execution of the procedure. It will be necessary to demonstrate that the measure would have manifestly excessive consequences if it were to apply.
6 - The conditions for executing the expulsion
The expulsion judgment constitutes the enforceable title on the basis of which the expulsion will take place.
The bailiff proceeds to the service of the order to have to leave the premises and the eviction may take place 2 months later. Except for occupants without rights or titles (squatters) and in case of peril (building threatening ruin) whose eviction can take place without delay.
At this stage, the eviction is acquired, the lease contract no longer exists and the tenant will have to vacate the premises.. All he can do is delay its execution by entering the JEX.
The JEX office
Referral to the JEX is governed by articles 412-1 to 412-4 (ALUR law of March 24, 2014) of the code of civil enforcement procedure. He may grant (renewable) time limits to leave the premises, if the eviction entailed consequences of "exceptional harshness", in particular if the rehousing cannot take place under normal conditions and this, without the occupants having to justify of a title at the origin of the occupation.
These deadlines may not be less than three months or more than three years.
To set these deadlines, the JEX will take into account "the good or bad will shown by the occupant in the performance of his obligations, the respective situations of the owner and the occupant, in particular with regard to age, "state of health, the status of disaster victim by acts of war, the family situation or fortune of each of them, the atmospheric circumstances", as well as the due diligence that the occupant justifies having made with a view to his rehousing.
Once again, only good faith can bring about the conviction of the judge. He will have to be shown the existence of difficulties in rehousing (requests made to social housing, FSL, all evidence of apartment searches), health problems ...
7 - Expulsion
It can only take place 2 months after the order to vacate the premises.
At the end of this period, the bailiff will carry out the eviction, but only on working days from 6 a.m. to 21 p.m. Several scenarios are to be considered depending on whether the tenant (former tenant to be exact) is present or absent and whether or not he agrees to leave the premises.
The tenant is present:
If he agrees to bring in the bailiff
The bailiff draws up an inventory report for the furniture and collects the keys. It will ask you for an address where to store the furniture. If you don't have one, he will put them in a storage room. You should know that the costs of removal and storage are the responsibility of the debtor.
The mistake not to make is to forget to collect all the administrative documents (children's health record, identity papers, insurance contracts, registration card, etc.).
If he refuses to bring in the bailiff
Since the ALUR law of March 24, 2014, the landlord who attempts to evict the tenant by force is liable to a criminal penalty of 3 years' imprisonment and a fine of 30 euros.
In addition, such actions (very well illustrated in the film “De beating mon cœur s'aitrait” by Jacques Audiard) nullify the entire expulsion procedure.
If the tenant refuses, the bailiff draws up a report of the difficulties and suspends the execution. He cannot use force or intimidate the tenant. To bring the expulsion to an end, he must seek the assistance of the police.
The decision to involve the police belongs to the prefect, who has discretionary power in this area. If he refuses to involve the police (especially in the absence of any rehousing solution for a family with many children, or in the presence of elderly, disabled people, etc.), the bailiff will not be able to execute expulsion.
It will be up to the lessor to send to the Prefect, by registered mail, a request for compensation from the State for refusing assistance from the police. Regarding the administration, it should be remembered that a silence of 4 months is equivalent to a refusal. Whether express or tacit, 4 months after the prefect's refusal, the lessor may apply to the administrative court to obtain compensation.
The tenant is absent:
The court decision pronouncing the eviction does not allow the bailiff to enter the living quarters, even empty., when it sees fit (and even less the owner!). Since the ALUR law, it is a violation of domicile.
He must request the intervention of the police from the prefecture (easier to obtain when the premises are empty) and resort to a locksmith to open, change the locks and close the premises. Then the bailiff will take an inventory and remove the furniture which will be placed in storage. At the end of the operations, seals, or a poster, may be affixed to the door to prevent access.
All costs will be borne by the debtor who can only recover the furniture if he has paid all these procedural costs.
In all cases, a eviction report which must be notified to the debtor. In the absence of an address, it will be made available to the bailiff's office.
It is on this report that the date and time of the hearing before the JEX will be indicated or the fate of the unrecovered furniture in storage will be decided.
8 - The fate of the furniture
If the furniture is stored in a furniture repository, the tenant has 1 month, from the date of the eviction report, to recover them.
If after 1 month the furniture has not been recovered by the debtor, the owner may request authorization from the JEX to sell them or abandon them if they have no value.
Article R. 433-6 of the Code of Civil Enforcement Procedures specifies that personal documents (identity papers, etc.) must be sealed and kept under review so that they can be returned to you on request.
To note :
It is important to remember that the bailiff is not required to search for the documents of the former tenant. The obligation only applies if they are displayed in the room. So, if documents have remained at the bottom of a drawer and he has difficulty retrieving them from the furniture repository, (because many unfortunately consider that all costs will have to be paid before accessing the furniture) the best The solution is to contact the bailiff to ask the warden of the room to let the former tenant enter to search for his personal documents.
If this problem is not solved, it is worth going to the hearing of the fate of the furniture (even if the former tenant does not intend to take it back, which is often the case when the asking price is far higher than the market value of the goods). The former tenant may raise this difficulty before the JEX, and the latter may ask the lawyer present at the hearing (if there is one who represents the interests of the creditor) to contact the bailiff. This often allows all obstacles to be removed.
How to manage unpaid rents?
It is sometimes difficult to know what to do when you find yourself faced with a tenant who does not pay his rent. How to act and react? Here are the essential keys to manage unpaid rents.
Act from the first unpaid rent
If it was not possible to anticipate this breach of rent, it is better not to leave it lying around and take this unpaid account into account as quickly as possible. Sometimes it is enough to contact your tenant and ask why you are faced with this unpaid rent. If the discussion is not enough, then a more severe procedure must be launched.
The next step is to create a file for your unpaid rent insurance, or to contact the person holding the deposit.
Terminate the tenant's lease
A properly drawn up lease contains a termination clause indicating that it is terminated following unpaid rents. The tenant must then vacate the premises. If the latter does not act in due form, it is necessary to initiate an eviction procedure.
The purpose is then to claim the repayment of the debt caused by this or these unpaid rents. It is a step not to be forgotten.