The Court of Cassation's response to the question of the unenforceability of mail in property seizures seems to be at odds with the provisions of the Code of Civil Enforcement Procedures. Here's where we stand.
The unenforceability of the lease under the Code of Civil Enforcement Procedures
Article L. 321-4 of the French Code of Civil Enforcement Procedures states that "Leases granted by the debtor after the act of seizure are not enforceable against the pursuing creditor or the purchaser, regardless of their duration.
Any means may be used to prove that the lease has been in force for a longer period.
It should therefore be considered that, in the case of a property seizure, a lease entered into prior to service of the summons to pay in lieu of seizure may be enforced against the successful bidder, whereas a lease entered into after such service may not be enforced on the grounds that it was entered into in breach of the rule of law relating to the unavailability of the property.
The enforceability of the lease according to the Court of Cassation
However, the Court of Cassation has tempered this rule to the extreme, ruling that "the delivery of a summons to seize the property does not prohibit the conclusion of a lease or the tacit renewal of a lease previously concluded, and that the lease, even concluded after the publication of such a summons, may be set up against the successful bidder who was aware of it before the auction". (Cass. civ., 2nd, 27 Feb. 2020, no. 18-19.174, published in the Bulletin).
With this position, the Court of Cassation reiterates its established case law, the reasons for which are set out below (Civ. 3e, 15 January 1976, no. 74-13.676; Civ. 3e, 11 February 2004, no. 02-12.762; Civ. 3e, 23 March 2011, no. 10-10.804, Civ. 3e, 9 June 2016, no. 15-10.595).
It directly contradicts Article 4 of the General Provisions of the Terms and Conditions of Sale relating to seizures, the second paragraph of which states that "leases granted by the debtor after delivery of the summons to pay in the event of seizure are not enforceable against the pursuing creditor or the purchaser"..
Evicting the tenant
If the successful bidder wishes to evict a tenant whose lease was signed after the summons was served, he will have to prove that he was unaware of the existence of the lease.
If, on the other hand, the lease is not enforceable against the successful bidder, then the latter may invoke the provisions of articles L. 322-13 and R. 322-64 of the Code of Civil Enforcement Procedures.
Article L. 322-13 states that "The auction judgement constitutes a writ of eviction against the distrainee.
Article R. 322-64 states that "Unless the terms and conditions of sale provide for the distrainee debtor to remain on the premises, the successful bidder may enforce the eviction order that he has against the distrainee and any of his occupants who do not have any rights enforceable against him from the time the price is paid or deposited and the taxed costs are paid.
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