Since the purpose of the real estate seizure procedure is to seize and sell a property, it is essential that the property be identified in the procedural documents in compliance with the requirements of the land registry.
Identification of the building
Article R. 321-3 of the French Code of Civil Enforcement Procedures, relating to the compulsory information in the summons to pay for the seizure of property, states that the summons must include "5° The description of each of the assets or rights to which the seizure relates, as required by the rules governing land registration;".
The requirements for land registration are set out in paragraphs 1 and 3 of article 7 of decree no. 55-22 of 4 January 1955. Identification of the property results from :
- Its nature (description),
- Location (address),
- The size of the parcel or parcels on which it is located,
- Its cadastral designation (section, plan number, lieudit or address, volume).
When the seizure concerns a co-ownership lot, the deed must also mention :
- The co-ownership lot number,
- Description of the co-ownership lot,
- His tantièmes.
All of this information will be included in the title deed (deed of sale, gift, etc.), but may have changed since it was published in the property register. Cadastral references may change, for example when a plot is divided, the land registry is reorganised, an amendment is made to the descriptive statement of division, etc.
Changes of any kind will be recorded in the building schedule, which must be ordered from the property register.
In the event of difficulty, it will also be possible to order the deed that caused the change to the cadastral references (e.g. survey document, cadastral reorganisation report, amendment to the descriptive statement of division, etc.).
In addition, the cadastral references are shown on cadastral extract no. 1, which must be included in the file for publication of the proceedings, along with the cadastral matrix, which confirms these references, the identity of the owner and the amount of the property tax.
Seizability of the property
The body of a sentence "Unless otherwise provided by law refers to the provisions relating to immovable property that cannot be seized by operation of law.
There are a number of possible scenarios (e.g. buildings required by professional trade unions for their meetings, etc.), but the most common scenario concerns the declaration of unseizability under Article L. 526-1 of the French Commercial Code:
"By way of derogation from articles 2284 and 2285 of the Civil Code, a natural person who is registered in a legal register for professional purposes or who engages in an agricultural or self-employed professional activity may declare that his or her rights to the building in which his or her principal residence is located and to any built or unbuilt property that he or she has not used for professional purposes are exempt from seizure. This declaration, published in the real estate register or, in the departments of Bas-Rhin, Haut-Rhin and Moselle, in the land register, has effect only with regard to creditors whose rights arise, subsequent to publication, in connection with the declarant's professional activity.
Where the entire property is not used for business purposes, the part not used for business purposes may only be declared if it is designated in a descriptive statement of division. The fact that the declarant is domiciled in his residential premises in application of article L. 123-10 does not prevent this premises from being the subject of the declaration, without the need for a descriptive statement of division".
Publication of the declaration of unseizability in the property register means that it will be enforceable against mortgagees registered after its publication. However, if the proceedings are initiated by a creditor who was registered before the declaration of unseizability was published, they will be able to validly declare their claim to the proceedings and will be paid when the funds are distributed.
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