Losing your home is a major trauma. Thousands of French people are evicted from their homes every year. The law seeks to strike a balance between the rights of the landlord and the protection of the tenant. Legislation offers a number of ways of avoiding or delaying eviction.
The right to housing and its implications
The right to housing has gradually become a fundamental requirement. First enshrined in the Mermaz Act of 6 July 1989, it was strengthened by the Act of 5 March 2007, known as the DALO (Droit Au Logement Opposable) Act.
This right is considered to be "a duty of solidarity for the nation as a whole" (article 1 of the law of 31 May 1990), as well as "a requirement of national interest" according to the Constitutional Council in its decision of 29 May 1990.
Measures relating to rehousing
Informing the Prefect
The eviction process begins with an obligatory step: notification of the Prefect. This obligation derives from article L. 412-5 of the Code of Civil Enforcement Procedures.
As soon as the order to vacate the premises has been issued, the bailiff must refer the matter to the prefect for information:
- The Commission for the Coordination of Actions to Prevent Tenancy Eviction
- The tenant can refer the matter to the mediation commission
This notification is so crucial that its absence suspends the period before eviction. The Court of Cassation has made this a strict obligation (Civ. 3e, 19 May 2010, no. 09-12.424).
Deadlines granted to tenants
The tenant has a minimum legal period of two months between the summons and the actual eviction (article L. 412-1 of the Code of Civil Enforcement Procedures).
This period may be extended in certain situations:
- Up to three additional months in circumstances of exceptional hardship
- Up to three years if rehousing is not possible under normal conditions
Beware, however: people who enter by de facto means ("squatters") lose this benefit. In a QPC ruling of 20 June 2019 (no. 19-40.010), the Court of Cassation confirmed that this distinction respects the balance between the right to property and the right to housing.
Special cases
The winter break
From 1 November to 31 March, no eviction may take place (article L. 412-6 of the Code of Civil Enforcement Procedures). This protection, known as the "winter truce", applies even when an eviction order has been issued.
There are two notable exceptions:
- Squatters may be evicted during this period
- Student accommodation does not benefit from this protection if the tenant no longer meets the allocation conditions.
Preventing eviction
General features
The law of 29 July 1998 introduced preventive mechanisms, in particular with regard to resolutory clauses in residential leases (article 24 of the law of 6 July 1989).
A resolutory clause does not take effect until a later date:
- A summons to pay which remained unfruitful for two months
- Full information for tenants on their rights (possibility of appealing to the housing solidarity fund, request for a period of grace)
The judge may grant payment terms of up to three years, thereby derogating from article 1343-5 of the Civil Code. This possibility may be exercised ex officio.
Housing benefit maintained
There is additional protection for corporate landlords (excluding family SCIs): the summons can only be issued after a period of two months following referral to the commission for the coordination of preventive actions.
This mechanism is designed to maintain the payment of housing benefit during this transitional period, in accordance with the provisions of article L. 351-2 of the French Construction and Housing Code.
Informing the Prefect
In the case of a summons to terminate a lease, the bailiff must notify the Prefect of the summons at least two months before the hearing. Failure to do so will result in the application being declared inadmissible.
This notification triggers a social and financial assessment of the tenant, which is sent to the judge before the hearing. This document helps to inform the court's decision with social and not just legal information.
Relationship with provisions on over-indebtedness
Excessive debt is often the primary cause of rent arrears. The law therefore provides for mechanisms to link the two procedures.
Effects of the admissibility of a claim
When the over-indebtedness commission issues an admissibility decision, the judge must grant deferred payment until the over-indebtedness procedure has been completed.
This suspension may continue until:
- Approval of the agreement
- The imposition of measures by the Commission
- Personal recovery judgment
- Closure of the procedure
Consequences of a conventional plan or commission decision
If a conventional plan is approved or the commission imposes measures, the judge must align the deadlines granted with those set by the commission.
If payment of the rental debt is suspended, this period is extended by three months to allow a new referral to the commission. During this period, the resolutory clause has no effect.
Effects of personal recovery
In the event of personal recovery (with or without judicial liquidation), the effects of the resolutory clause are suspended for two years from the date of the decision to cancel the debt.
If the tenant respects his obligation to pay the current rent during these two years, the resolutory clause is deemed never to have come into play. This measure illustrates the "second chance" principle.
There is one crucial point to make: this suspension does not affect the obligation to pay current rent. Only past debts are affected.
All of these systems illustrate the complexity of the subject and the interaction between several branches of law. Personalised advice is often needed to navigate this legal labyrinth.
Our firm assists tenants in difficulty in implementing these protections. If you would like us to analyse your situation, please do not hesitate to contact us.
Sources
- Code of Civil Enforcement Procedures, articles L. 412-1 to L. 412-7 and R. 412-1 to R. 412-4
- Law no. 89-462 of 6 July 1989 on improving rental relations
- Law no. 90-449 of 31 May 1990 on the implementation of the right to housing
- Law no. 98-657 of 29 July 1998 on the fight against exclusion
- Law no. 2007-290 of 5 March 2007 establishing the enforceable right to housing
- Consumer Code, articles L. 711-1 to L. 743-2
- Court of Cassation, 3rd Civil Division, 19 May 2010, no. 09-12.424
- Court of Cassation, 3rd Civil Division, QPC, 20 June 2019, n°19-40.010
- Constitutional Council, decision of 29 May 1990
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