The property seizure procedure is based on a disparate body of legislation, and there is no point in drawing up an exhaustive inventory at this stage. However, there are a few basic points that need to be clarified.
Reform and codification of the foreclosure procedure
The seizure of property procedure was reformed by order no. 2006-461 of 21 April 2006 and its implementing decree no. 2006-936 of 27 July 2006amended by Decree no. 2006-805 of 23 December 2006 and no. 2009-160 of 12 February 2009.
Articles 1 to 42 of the law no. 91-650 of 9 July 1991 reforming civil enforcement procedures and articles 1 to 54 of its implementing decree no. 92-755 of 31 July 1992 are applicable to the seizure of immovable property, unless otherwise provided.
Le code of civil enforcement proceduresArticles L. 311-1 to L. 341-1 and R. 311-1 to R. 334-4 of the Decree, which has been in force since 1 June 2012, incorporate almost all of the content of the aforementioned Decrees.
Circular 03-09 C3 of 20 March 2009 on the presentation of the provisions relating to the seizure of real estate, the distribution of the price of real estate and the sale of the real estate of a person who is the subject of collective proceedings, issued by Order 2008-1345 of 18 December 2008 and Decree 2009-160 of 12 February 2009, is a useful guide for court registrars.
The national internal rules of the legal profession
In addition, the National rules of procedure for the legal profession Article 12 is devoted to the ethics and practice of lawyers in judicial sales. In particular, article 12.1 requires lawyers to use the standard clauses appended to the regulations, which set out the general provisions applicable to judicial sales involving the seizure of real estate, licitations and judicial liquidation.
Until recently, the general provisions of the terms and conditions of sale had no normative value. In fact, despite the provisions of article 38-1 of decree no. 91-1197 of 27 November 1991 organising the legal profession, the Conseil national des barreaux had failed to notify the Minister of Justice and to publish in the Journal officiel the decision attaching the standard general provisions to be used for judicial sales.
It follows from the provisions of the first paragraph of Article 1 of the Civil Code that laws and administrative acts only come into force if they are published in the Official Journal: "Laws and, when they are published in the Official Journal of the French Republic, administrative acts come into force on the date they specify or, failing this, on the day following their publication. However, the entry into force of those of their provisions whose execution requires implementing measures is postponed to the date of entry into force of these measures."
The Court of Cassation had therefore found that they had no normative value and, consequently, that their violation could not give rise to cassation (Cass. civ., 2nd, 25 Sept. 2014, no. 13-15.597). This omission was corrected when the Decision of 13 February 2019 reforming the CNB's national rules of procedure for the legal profession was published in the Official Journal on 7 March 2019.
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