When a professional finds himself with an item that a customer never comes to collect, a situation arises that is both delicate and cumbersome. Whether it's a vehicle in a garage, furniture at a craftsman's, goods at a transport company or luggage in a hotel, the law offers a solution for freeing up the space and recovering the sums owed: the forced sale of abandoned items. Although governed by specific laws, this approach is similar to one of the many others available. civil enforcement procedures enabling a creditor to get paid. Given the complexity of these procedures, the assistance of a expert lawyer in debt collection is often essential to secure the sale and ensure that your rights are respected. This article takes you through the key stages of the sale procedure and discusses the complex situations that can arise.
Definition and framework: abandoned property and its legal boundaries
An object is considered abandoned when its owner, who has entrusted it to a professional for service or storage, delays or deliberately fails to take it back. It is essential to distinguish this situation from related concepts. It is not a case of "property without a master" (or res nullius), which would belong to the municipality by default, nor of a voluntarily discarded or abandoned item (res derelictae), where the owner has relinquished his or her right of ownership. Here, the initial intention was not to abandon, but the owner's delay creates a de facto situation that the law regulates. This factual situation does not transfer ownership to the professional.
It is also essential to differentiate this procedure from seizure and sale. Seizure and sale is initiated by a creditor with a writ of execution to recover a debt. The sale of unclaimed items, on the other hand, responds to the need of a custodian (garage owner, repairer) to dispose of an item and to pay itself out of the price the sums due for the service or custody. Similarly, this approach must be distinguished from the mechanisms of the securities lawThe sale may only involve movable property, with the notable exception of pledges. Lastly, the sale may only involve movable property, with the notable exception of unseizable movable property listed by law.
The legal basis: two main schemes for professionals
The legislator has provided two distinct legal frameworks for these sales, each targeting a specific area of activity with specific deadlines.
The Act of 31 March 1896 was specifically aimed at innkeepers, hoteliers and professional landlords. It allows them to sell household effects left behind by their customers. In principle, a period of six months must elapse after the guest's departure before legal proceedings can be initiated.
The broader law of 31 December 1903 on the sale of certain abandoned items applies to all other professionals to whom an item of furniture has been entrusted to be worked on, shaped, repaired, cleaned or stored. It applies in particular to craftsmen, garage owners, transport companies, shipyards for pleasure boats and furniture storage companies. The legal deadline for taking action is one year from receipt of the item. However, this period is reduced to three months for land motor vehicles, two- or three-wheeled motorbikes or quadricycles. In the case of goods deposited against a periodic fee (e.g. furniture storage rent), the period runs from the last unpaid instalment.
Legal proceedings: how do I obtain authorisation to sell?
Professionals cannot sell abandoned property on their own initiative; they must obtain court authorisation. The first step is to file an application with the judge of the judicial court in the place where the property is located. This application must state the facts, the date of filing, the name of the owner, the precise description of each item and give an approximate valuation.
This procedure falls under the powers of the enforcement judge (JEX)This magistrate examines the request. If the magistrate deems the application to be well-founded, he or she issues an order setting out the terms of the sale: day, time, place and price. The order also designates the public officer, usually a court commissioner, who will be responsible for carrying out the sale. If the owner's place of residence is known, the public official must notify the owner by registered letter at least eight days before the sale. The owner may then lodge an objection by bailiff, which has the effect of suspending the sale and bringing the matter before the judge for a hearing at which he will rule as soon as possible.
Auction and distribution of the price: from property to claim
If there are no objections, the sale takes place by public auction, under the supervision of a public official. The procedure is modelled on that for seizure and sale. The sale is awarded to the highest bidder and the price is payable in cash. If the successful bidder defaults, the property is immediately resold at "folle enchère", and any difference in price is charged to the buyer. It should be noted that, as this is a sale by judicial authority, the guarantee against hidden defects is excluded.
After deduction of the costs of the procedure (legal, advertising, sale), the proceeds of the sale are distributed according to the rules of the distribution of funds. The public officer pays the professional the amount of his claim. If there is a surplus, it must be deposited at the Caisse des Dépôts et Consignations in the name of the owner. The owner has a period of two years (1896 Act) or five years (1903 Act) in which to claim it, after which the funds are automatically acquired by the Treasury. The payment order follows a similar logic to the distribution of funds from a sale of movable property.
Managing complex situations: creditor disputes and redress
The situation can become more complex if other creditors have rights over the abandoned item. The most common case is a conflict between the retention right of the professional custodian and the preferential right of a pledgee. If a vehicle has been the subject of a regularly published non-possessory pledge, the pledgee has a preferential right that often takes precedence over the custodian's right of retention. In the event of a conflict, article 2340 of the Civil Code gives priority to the first creditor to have published its security. In addition, for business debts, article 2346 of the Civil Code offers an alternative: a simplified public sale, eight days after simple notification to the debtor, which may be quicker than the 1903 procedure. Owners can contest the sale if they consider the procedure to be unfair, particularly if the costs are disproportionate to the value of the property sold.
Selling abandoned property is a technical procedure that requires a thorough understanding of the law and deadlines. To ensure that your rights are protected and that the process is a success, our firm can provide crucial support. Contact our team of lawyers for an analysis of your situation.
Frequently asked questions
What is the difference between the sale of abandoned property and seizure and sale?
The sale of abandoned goods is initiated by the professional who holds the goods in order to free up his premises and pay himself. Seizure and sale, on the other hand, is a collection measure initiated by a person in possession of a writ of execution to obtain payment of a debt, independently of any deposit.
What is the legal deadline for taking action?
The period is one year after deposit for most goods (law of 1903), but is reduced to three months for vehicles. For hoteliers (law of 1896), the period is six months after the departure of the customer.
What if another creditor has a pledge on the property?
A pledgee who has published his security interest before the object is deposited may have a priority right to the sale price. Resolving this conflict of rights, particularly in the face of the professional's right of retention, requires a precise legal analysis to determine the ranking of each creditor.
Can the owner contest the sale?
Yes, the owner can oppose the sale after being informed of it. This action suspends the procedure and brings the dispute before the enforcement judge for a hearing to decide whether the request for sale is well-founded.
What happens if the sale price exceeds the amount receivable?
Once the costs of the procedure and the professional's claim have been paid, the surplus is deposited by the public officer with the Caisse des Dépôts. The owner has a legal period (two or five years) in which to make a claim and recover this sum.
Is there a faster procedure for professionals?
Yes, for business debts, article 2346 of the Civil Code allows for a simplified public sale, just eight days after service on the debtor by a bailiff, without a detailed report always being required. This option may be more advantageous than the procedure under the 1903 Act.
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