The descriptive report is a report in which the bailiff enters the premises to describe them. We will look first at the usefulness of this procedure, then at the legal framework for drawing it up, and finally at its content.
The usefulness of descriptive minutes
The description of the property is similar to a bailiff's report, which provides information on the condition of the property, the conditions under which it is occupied and, where applicable, the name of the managing agent. This information will enable the pursuing creditor to set the amount of the upset price, and the candidate for the auction to find out more about the property they are considering buying.
It must be appended to the schedule of conditions of sale, which will be filed with the clerk's office within 5 days of service of the summons for the orientation hearing. Consequently, it will be drawn up between the service of the summons and the service of the summons.
Drawing up the descriptive minutes
Article R. 322-1 of the Code of Civil Enforcement Procedures :
"On expiry of a period of eight days from the date of issue of the summons to pay, and in the absence of payment, the bailiff may enter the premises in accordance with the conditions set out in article L. 322-2.
Article L. 322-2 of the Code of Civil Enforcement Procedures :
"The bailiff may enter the premises and, if necessary, have the doors and furniture opened in order to describe the seized property.
In the absence of the occupant of the premises or if the occupant refuses access, the bailiff shall proceed as provided for in Articles L. 142-1 and L. 142-2. Where the premises are occupied by a third party by virtue of a right enforceable against the debtor, the bailiff may enter only with the prior authorisation of the enforcement judge, in the absence of the occupant's agreement."
The bailiff must enter the premises within a minimum period of 8 days from the date on which the summons to pay is issued.
The inspector may enter the premises with the occupant's consent. Failing this, the inspector may enter the premises in the presence of a representative of the municipality, a police or gendarmerie officer or two witnesses in accordance with article L. 142-1 of the French Code of Civil Enforcement Procedures.
The authorisation of the enforcement judge is sought by means of a petition. In practice, some enforcement judges ask the lawyer to attach to his application a statement of default to prove that application of the provisions of the aforementioned article L. 142-1 is necessary.
When the proceedings are directed against the third party holder or the mortgage guarantor, the minimum period remains 8 days. This solution would appear to conflict with the 1-month time limit given to them to fulfil their obligations under the summons. This is why we recommend that you wait until this period has expired before asking the bailiff to draw up the descriptive report.
The content of the descriptive minutes
Article R. 322-2 of the Code of Civil Enforcement Procedures :
"The description report includes :
1° Description of the premises, their composition and surface area ;
2° An indication of the conditions of occupancy and the identity of the occupants, together with a statement of the rights to which they are entitled;
3° Where applicable, the name and address of the co-ownership manager;
4° Any other useful information about the building provided, in particular, by the occupier.
The judicial representative will have to describe the premises, describe the conditions under which they are occupied, identify the occupants and any occupancy titles (leases). Finally, in the case of co-owned property, he will try to identify the managing agent.
The obligation to state the surface area, on the other hand, will require the court commissioner to be accompanied by an expert diagnostician. The surface area is understood to mean the habitable surface area as defined by the Carrez law.
All this can have significant practical consequences. If it is necessary to obtain a court order to enter the premises, then the court commissioner may have to coordinate his intervention with the expert diagnostician, the police force and the locksmith.
It is therefore in the lawyer's interest to appoint the court commissioner as soon as possible.
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