The seizure of property procedure enables a creditor to obtain payment of his debt by selling his debtor's property. This technical and complex method of enforcement is strictly regulated by the Code of Civil Enforcement Procedures to protect the interests of all parties. Whether you are a debtor or a creditor, understanding its mechanisms is essential. Navigating this procedure requires precise legal expertise, particularly since the recent legislative changes that have come into force. For a complete analysis of your rights and of each option, we strongly recommend that you seek advice from our expert lawyers in foreclosure at our firm.
The parties involved in foreclosure: roles, powers and responsibilities
The foreclosure procedure involves a number of legal professionals whose roles and responsibilities are distinct but interdependent. A perfect understanding of their functions is a prerequisite for mastering the procedure.
The enforcement judge (JEX): referee of the procedure
The enforcement judge, a magistrate of the judicial court, has exclusive jurisdiction to supervise the entire property seizure procedure, as set out in article L. 213-6 of the Code of Judicial Organisation. He decides on all disputes that arise, whether they relate to the formal validity of the deeds or to the substance of the law, such as the validity of the writ of execution or the amount of the claim. At the orientation hearing, he decides on the outcome of the proceedings: amicable sale or forced sale, the latter being an option often feared by the distrainee debtor. However, his powers are limited: he can neither modify the creditor's writ of execution nor grant payment deadlines that are not provided for by law.
The judicial commissioner: the enforcement agent at the heart of the system
The commissioner of justice (formerly a bailiff) is the key player in the practical implementation of the seizure. The bailiff has a monopoly on serving the key procedural documents, starting with the summons to pay for the seizure. They are also responsible for drawing up a description of the property, an essential document that will be appended to the terms and conditions of sale. The auctioneer's professional liability may be incurred in the event of errors or omissions in these documents, particularly if incorrect information in the descriptive report or the conditions of sale cause prejudice to the successful bidder, the final purchaser. The responsibility of professionals involved in the procedure is a major issue for the legal certainty of the sale.
Third-party guarantors and holders: mortgage guarantors and third-party purchasers
The procedure does not only concern the creditor and the debtor. A third party may also be involved, in particular a mortgage guarantor who has used one of his or her properties as security for someone else's debt. The third party holder is also concerned, if he has purchased a property on which a mortgage has not been discharged. In these cases, the summons to pay is served directly on them, and they have a period of one month in which to pay, compared with eight days for the principal debtor. Their specific rights and obligations, such as the right of discussion for the guarantor, complicate the procedure and require in-depth legal analysis by a lawyer.
Prerequisites for foreclosure
A property seizure can be initiated as soon as the creditor has a writ of execution establishing a liquid and payable debt. To find out more, read our article on the validity of your enforcement order. A claim is liquid when it is or can be valued in money. It is payable when the creditor has the right to pursue its recovery. The most common enforceable instruments are court judgments and notarial deeds. While a court decision ordering the payment of a sum is simple to enforce, the notarial deed must contain all the information needed to calculate the sums due for the claim to be considered liquidated, in accordance with art. L. 111-6 of the Code of Civil Enforcement Procedures, a key provision in this area.
Chronological sequence of the seizure procedure
The property seizure procedure follows a strict timetable, punctuated by acts and hearings whose purpose is to prepare and complete the sale of the seized property to pay off the creditor. It is essential to follow this timetable to avoid any mistakes.
1. The summons to pay in the form of a seizure
The procedure begins with the service of a summons to pay equivalent to a seizure. This serves notice on the debtor to pay its debt within eight days (or one month in the case of a third-party guarantor). As soon as the debtor has been served with the summons to pay, the property becomes unavailable: the owner can no longer sell it or encumber it with new securities. Rents (income from the seized property) are also frozen. The summons must be published at the Land Registry within two months in order to be enforceable against third parties, an essential step.
2. Description report and technical diagnostics
After the purchase order has been issued, the judicial commissioner visits the property to draw up a detailed description of the building. This document, which includes photographs, is essential because it informs potential buyers of the property's contents. It must be accompanied by the technical diagnosis file (DDT), which includes the energy performance diagnosis (DPE) and, for co-ownership lots such as flats, the Carrez law measurement. The accuracy of this information is vital, as any errors may render the professional liable.
3. The orientation hearing: the crossroads of the procedure
The seized debtor is then summoned to an orientation hearing before the Enforcement Judge. This hearing is the heart of the procedure. The judge verifies the validity of the seizure, rules on any objections raised by the debtor and decides on the outcome: either he authorises the debtor to sell the property out of court, or he orders the forced sale by auction. It is at this stage that the debtor must raise all his defences, on pain of subsequent inadmissibility. This is a single stage at which the defence must be concentrated.
4. The sale: from amicable settlement to compulsory auction
If an out-of-court sale is authorised, the debtor has a period of time set by the judge (generally four months) to find a buyer. The sale takes place under court supervision and the price must be sufficient to pay off the creditors. Failing this, or if an amicable sale is not authorised, the property is sold by public auction (forced sale) on a date set by the judge. The sale takes place in a court of law, at a price set by the pursuing creditor. The auction results in the transfer of ownership to the last bidder, the successful bidder. Any person may then make a higher bid of one tenth within ten days of the auction, which triggers a new auction. If the successful bidder fails to pay the price, a re-bidding procedure (sometimes called "folle enchère" in the old legal language) may be initiated at his expense.
5. Award distribution: why can it take up to 2 years?
Once the sale price has been consigned, it must be distributed among the creditors. If the sale price is higher than the amount of the debts, the debtor must collect the remainder, but this phase can be long and complex. The time taken for distribution, which can be as long as 18 to 24 months, is due to the succession of several inescapable stages: publication of the title deed at the land registry (SPF), which can take several months, then the filing with the court registry and the order procedure itself, which aims to classify creditors according to their rank (privileges, mortgages) in order to organise the repayment of each one. The price is generally paid into an escrow account or to the Caisse des Dépôts et Consignations, and legal costs are deducted first. There is a direct link between the actual deposit of the price and the start of this distribution procedure.
Challenging a property seizure: recourse by the debtor, deadlines and penalties
The seized debtor is not helpless in the face of the procedure. They have a number of defences, which must be raised at specific times, mainly at the orientation hearing, to contest the validity of the seizure and potentially put an end to it with the help of a lawyer.
Grounds for challenge: procedural defect, claim and writ of execution
The debtor may challenge the seizure on the basis of procedural defects (failure to meet deadlines, missing information in a deed) or on the merits of the case. The debtor can challenge the claim itself (if it is not liquid or due), the validity of the writ of execution, or the presence of unfair terms in the credit agreement that gave rise to the debt. All these arguments must be presented to the Enforcement Judge at the orientation hearing, in application of the principle of concentration of pleas, which has been established in case law in this area. To master these aspects, it is essential to be familiar with the many means of defence that can be invoked.
Nullity, nullity, lapse: the 3 sanctions that can wipe out proceedings
Procedural irregularities are penalised in three different ways. Nullity is a sanction for a formal or substantive defect in a document (e.g. compulsory information missing from a purchase order), provided that a grievance can be proved. This penalty is often incurred on pain of nullity if the law expressly provides for it. The summons to pay lapses if the creditor fails to comply with key time limits (e.g. summons not published within two months, summons not delivered within two months of publication). Lastly, lapsing puts an end to the effects of the summons if no judgement recording the sale is published within five years of its publication, as provided for in art. R. 321-20 of the Code of Civil Enforcement Procedures. It is important to note that these drastic sanctions can wipe out the lawsuit.
Impact of the security reform (2021) on the procedure
Order no. 2021-1192 of 15 September 2021 radically reformed the law on security interests. It has a direct impact on the seizure of property, particularly with regard to the hierarchy of creditors in the final phase of price distribution. For a better understanding of the changes in applicable security interests, the following points should be taken into account the recent 2021 reform of security lawwhich comes into force on 1 January 2022, is essential.
The end of special real estate liens in favour of legal mortgages
Before the reform, certain creditors (the seller of the property, the lender who financed the purchase) benefited from "special property liens" which gave them priority, sometimes retroactively. The reform abolished these liens and transformed them into legal mortgages. This major change, the provisions of which are gradually coming into force, is designed to simplify the classification of collateral and make it easier to understand.
Consequences for the ranking of creditors and the distribution of the price
The main consequence of this reform is a change in the order in which creditors are paid. From now on, the ranking of these new legal mortgages will be determined by the date they are registered with the Land Registry, as is the case for conventional mortgages. The "first registered, first served" rule prevails, which puts an end to the retroactive effect of certain old liens. This new hierarchy has a tangible impact on each creditor's chances of recovering their claim during the sale price distribution procedure.
Property seizures and complex situations
Property seizure proceedings can interfere with other legal regimes designed to protect the debtor, such as collective proceedings or over-indebtedness. These interactions create complex situations that require specialised expertise from your lawyer.
Relationship with collective procedures (safeguard, recovery, liquidation)
The decision to initiate safeguard, reorganisation or compulsory liquidation proceedings immediately suspends all individual proceedings, including any property seizure in progress. If the seizure was initiated prior to the opening judgment, it is suspended. The fate of the house or flat that has been seized will then depend on the insolvency proceedings: the property may be sold by the liquidator as part of a liquidation, or it may be included in a recovery plan to ensure that the debts are repaid.
Interaction with the over-indebtedness procedure
When an individual debtor files an over-indebtedness application, the decision by the over-indebtedness commission to accept the application suspends the property seizure procedure. However, there are limits to this suspension: if it occurs after the decision ordering the compulsory sale, the seizure procedure is no longer suspended as of right. The commission can only ask the enforcement judge to postpone the auction date, which he is free to grant or refuse. The judge's decision is final. For a full analysis of the relationship between the seizure of property and over-indebtedness or collective proceedingsWe invite you to read our dedicated article.
The complexity of foreclosing on property requires specialised legal expertise. For personalised support and effective defence of your interests, please contact call in a specialist lawyer.
Frequently asked questions
What property can be seized?
The creditor may seize all real property rights belonging to the debtor (full ownership, usufruct, bare ownership). The main obstacle is the declaration of unseizability of the main residence for the business debts of a sole trader.
Can a property be seized for a small debt?
Yes, the French Code of Civil Enforcement Procedures does not set a minimum amount for a claim to initiate a seizure of property. The creditor is free to choose this method of enforcement, the only limit being abuse of right, which is rarely upheld by the courts for this reason alone.
Should other seizures be attempted before initiating a property seizure?
No, the pursuing creditor is under no obligation to first attempt other simpler enforcement measures, such as a bank account seizure. They can choose the measure they consider most appropriate to recover their debt.
What is the difference between lapsing and expiry?
Lapse sanctions the failure to complete a procedural act within a given timeframe (for example, failure to publish a summons within 2 months). Lapse, on the other hand, sanctions the inaction of the pursuing creditor over a long period (five years) without a sale judgement having been issued and published.
Can a creditor contest the sale price?
No, Art. L. 322-6 of the Code of Civil Enforcement Procedures reserves this right solely to the distrainee debtor, who may ask the enforcement judge to revalue a reserve price that he considers to be manifestly insufficient to cover the value of the property. Registered creditors do not have this right.
How does the 2021 reform affect my guarantee?
The 2021 reform transformed special real estate liens into legal mortgages. The main consequence is that the ranking of your security is now determined by its publication date, rather than by a legal priority that is sometimes retroactive. This makes the date of registration of your security interest in the property register even more decisive.
EN 
FR