The mortgage

Mortgages are France's oldest and most powerful form of real property security. Reformed by Order no. 2006-346 of 23 March 2006 and then radically overhauled by the’order no. 2021-1192 of 15 september 2021, It is set out in articles 2385 to 2474 of the Civil Code. This guide sets out what you need to know about it in order to practise it correctly: its legal nature, the three ways in which it can come into being, its constitution by a notary, the central mechanism of ranking, its realisation when the debtor does not pay, its extinction, and its place in collective proceedings.

The angle adopted is that of a lawyer talking to a colleague, a manager or a well-informed borrower - not to a student. Less emphasis will therefore be placed on the canonical definitions than on the practical pitfalls: the requirement for a notarised deed on pain of validity, the rules governing ranking in the event of competing registrations, the 50-year limitation period, the prohibition on commissory agreements on the principal residence, and the link with safeguard and overindebtedness.

A real right in the property without dispossession

Article 2385 of the Civil Code gives the legal definition: «A mortgage is the assignment of an immovable as security for an obligation without dispossession of the person assigning it.» Three elements are essential. First, the mortgage is a real right Firstly, the mortgagee has a direct claim on the property, which can be enforced against any third party holder; he does not simply have a claim against a person. Secondly, it relates exclusively to a building (or a right in rem in immovable property such as usufruct, art. 2397). Finally, it is carried out without dispossession The grantor retains the use, enjoyment and disposal of the property. He may continue to live in it, rent it out or sell it - it being understood that the mortgage follows the property in the hands of the purchaser.

Mortgages have three structuring features. It is indivisible It attaches the property in its entirety, regardless of the proportion of the debt that remains unpaid (article 2386 of the Civil Code). It is accessory the secured claim: without a claim, there is no mortgage; and when the claim is extinguished, the mortgage is extinguished with it (article 2474). Lastly, it is special, This means that the deed establishing it must precisely identify the encumbered property and the amount of the secured debt (article 2414). This speciality protects the debtor against the indefinite allocation of all his real estate assets, and ensures that the land registry is legible.

Preferential right and resale right

The mortgagee benefits from two prerogatives that make the security effective. The preferential right, Firstly, out of the sale price of the property (whether forced or amicable), he is paid before unsecured creditors and before lower-ranking mortgage creditors. The resale right, This is codified in article 2454 of the Civil Code: if the debtor sells the encumbered property, the mortgage does not disappear - it follows the property into the hands of the third-party purchaser, who will bear the seizure if the debt is not paid. It is this mechanism that explains why, in practice, no notary signs a property sale without purging or removing the mortgage registrations: the buyer does not want to inherit someone else's liabilities.

This dual effect radically distinguishes mortgages from personal sureties. The creditor does not depend on the debtor's solvency at the time of default: he relies on the value of the property, in the condition and in the hands in which it is located.

Mortgages and surety bonds

In practice, many would-be borrowers hesitate between doing guarantee their loan through a specialised organisation (Crédit Logement, mutuelles fonctionnaires, etc.) and have them secured by mortgage. The difference is not just one of cost. Guarantees are based on the personal commitment of a third party; mortgages are based on an asset. In the event of default, the guarantor immediately pays the bank and then takes action against the debtor; the mortgagee, on the other hand, has to initiate a long and costly property seizure. For the debtor, on the other hand, the guarantee leaves the property free of any registration and avoids the costs of releasing the property on resale. For the creditor, the mortgage offers a real rank and a right of pursuit that the surety bond can never match. Our bonding guide explains the mechanics of this personal commitment.

Three types of mortgage: conventional, legal and judicial

Article 2393 of the Civil Code states that mortgages may be created from three sources: the agreement of the parties, the law or a court decision. This tripartition structures the entire system. Each type is subject to its own conditions of constitution and sometimes has different effects - particularly as regards ranking.

The conventional mortgage, a solemn contract

A conventional mortgage arises from an agreement between the creditor and the grantor - usually the debtor, but sometimes a third party who grants a real security for third parties by assigning his property to the debt of another (Cass. com., 5 April 2023, no. 21-14.166: this assignment is not a surety and is therefore not covered by the law protecting sureties, regardless of whether the grantor also became a surety).

Article 2413 (now 2409 after Ordinance 2021) requires that a conventional mortgage be constituted by notarised deed with penalty of validity. This requirement must be read literally: it is not a rule of evidence or enforceability, but a condition of validity. A private document whose purpose is to create a mortgage is null and void, and not simply unenforceable. The case law in JurisClasseur Fasc. 737 reminds us that a contractual mortgage is a "deed of title". solemn contract. This same requirement now expressly applies to the mandate to mortgage (new article 2409), confirming long-standing case law.

The notarial deed must precisely identify the property and the amount of the secured claim (principle of speciality, art. 2414). It will then be published at the Land Registry within two months, so that it ranks retroactively to the date of the deed. This is an important feature: a conventional mortgage legally exists as soon as the deed is notarised, but only becomes enforceable against third parties once it has been registered. As long as it has not been published, it has neither preferential nor resale rights against a third party acting in good faith.

Legal mortgages and special legal mortgages

A significant proportion of mortgages result directly from the law, without the agreement of the debtor or the intervention of a judge. Since the Order of 15 September 2021, this has been the case for all former special real estate liens, transformed into special legal mortgages by Article 2402 of the Civil Code. The major consequence is the disappearance of the retroactivity of the registration: the rank of the security is now determined exclusively by the date of publication in the land registry (JurisClasseur Fasc. 737, § 101). However, former preferential registrations continue to benefit from the old law, which creates a transitional period that is difficult to manage.

The main special legal mortgages benefit :

• at property vendor unpaid price ;
• at moneylender which financed the acquisition of the building ;
• at joint owners' association for unpaid charges ;
• at Treasury for tax collection ;
• in favour of the’Status and certain public bodies.

In addition, there have been residual general legal mortgages since 2021, such as the guardian's mortgage on the minor's property or the mortgage attached to judgments of conviction (see below).

Judicial conservatory mortgage

Where the creditor does not yet have a writ of execution but fears the debtor's insolvency, he may apply to the enforcement judge, on the basis of the’article L. 511-1 of the Code of Civil Enforcement Procedures, authorisation to register a protective judicial mortgage on one of the debtor's properties. Two conditions must be met: the claim must appear to be well-founded in principle; and recovery must be threatened.

Registration takes place in two stages. The creditor first obtains a provisional advertising, This makes the security immediately enforceable. He then has a period in which to obtain a writ of execution and have the provisional publicity converted into definitive publicity (art. R. 533-4 CPCE). Failing this, the provisional notice may be cancelled (art. R. 533-6). The 2nd Civil Chamber of the Court of Cassation reiterated this on 5 March 2026 (no. 23-13.354): premature final publication - before the title has become final - leaves the provisional registration subject to the confirmation period and the sanction of cancellation. And, in another judgment of 12 March 2026 (no. 23-20.666), the same chamber specified that conversion to final publication is the responsibility of the land registry, after presentation of the judicial decision: a judge hearing an exequatur case exceeds his powers by ordering it himself.

Before authorising registration, the JEX must check that the claim appears to be well-founded. Since Cass. 2e civ. 27 March 2025, no. 22-18.847, this has included an examination of the grounds on which the claim is time-barred. The conservatory procedure is therefore no longer automatic: it presupposes a minimum adversarial debate on the apparent merits of the claim.

A special variant: the maritime mortgage

In addition to mortgages under ordinary law, ships - which are movable by nature, but registered and subject to publicity - may be encumbered by a special mortgage governed by articles L. 5114-1 et seq. of the French Transport Code. The rules for creating a mortgage are specific to maritime law (written deed, entry in the register of the home port, rank determined by the date of entry). We have devoted a article dedicated to maritime mortgages.

A final variant: the lifetime mortgage loan

Le reverse mortgage, introduced by Order no. 2006-346 and codified in articles L. 315-1 et seq. of the French Consumer Code, enables an elderly borrower to secure a loan by mortgaging his or her home without having to repay the loan during his or her lifetime: the debt is discharged on the borrower's death out of the sale price of the property. This is a unique mechanism, combining a loan, a mortgage and a life annuity, and giving rise to its own set of disputes (Cass. 1re civ., 19 June 2024, no. 22-20.533: the expert valuation of the property is decisive in determining consent). Our mortgage guide will be coming back to this mechanism in detail.

Setting up and registering a mortgage

Once a mortgage has been created - by contract, by law or by court order - it only becomes fully enforceable once it has been published. This step is not an administrative detail: it is what makes the mortgage enforceable against third parties, and it is this step that determines the ranking of the mortgage.

The deed and the registration form

In the case of a conventional mortgage, the notary draws up the deed of constitution and then draws up the mortgage certificate. registration form. In accordance with article 2428 of the French Civil Code, the registration form must contain the following information: identity of the creditor and debtor, cadastral designation of the property, principal and ancillary amount of the secured claim, due date and duration of the registration. Any substantial omission or inaccuracy may render the registration unenforceable.

For conservatory judicial mortgages, the slip is drawn up by the creditor (or his lawyer) on the basis of the JEX order. For legal mortgages, it is drawn up on the basis of the legal title from which it derives (writ of execution, contract of sale, loan agreement, etc.).

Registration with the Land Registry Office

Registration is required from land registry service of the place where the property is located (article 2421 of the French Civil Code). Since 1 January 2013, the mortgage registry has been replaced by this service, which is part of the Directorate General of Public Finance, and the figure of the mortgage registrar has disappeared. However, the term is still commonly used in notarial deeds. A reform of land registration has been announced for several years (Law 3DS of 21 February 2022, article 198; report submitted to the Minister of Justice in 2018), but it has not yet been completed.

The registration gives rise to the issue of a mortgage statement that evidences the security and fixes its date - and therefore its rank. The notary has a two-month period from the date of the deed to request registration: this period preserves the mortgage's rank retroactive to the date of the deed. Once this period has elapsed, the registration is valid but does not take effect until the effective date of publication.

The actual cost of registration

Borrowers often underestimate the cost of registering a conventional mortgage. In practice, the total cost is between 1.5 % and 2 % of the guaranteed amount, and breaks down into four items: the land registration tax of 0.715 % collected by the State; the property security contribution of 0.10 % collected by the land registry service. notary's fees proportional to the amount; and disbursements and ancillary formalities. A loan of €250,000 secured by a mortgage will therefore incur registration fees of between €3,750 and €5,000, to be paid in addition to the costs of acquiring the property.

This cost must be set against that of a bank guarantee (often 0.8 to 1.2 %, partly repayable at the end of the loan) - this is the classic trade-off at the time of property financing.

Duration of registration and expiry date

Article 2434 of the Civil Code lays down an absolute rule: the the maximum duration of a mortgage registration is fifty years. At the end of this period, registration is expired. Expiry does not cause the mortgage itself to disappear - it is an accessory to a claim that may itself survive - but it does cause it to lose its opposability to third parties. In practical terms, a creditor whose registration has lapsed no longer has either a preferential right or a right to follow as long as he or she has not proceeded with a renewal. And this renewal, to preserve the original rank, must take place before the expiry date.

In practice, this is the classic oversight of the passive creditor. When a loan extends over thirty or forty years (life loans, very long-term loans, loans with deferrals), there is a risk of lapse. On 8 January 2026, the 3rd Civil Chamber of the Court of Cassation reiterated this point (no. 24-11.645): a conventional mortgage that has not been renewed loses its rank, regardless of whether the debt it secures still exists. Diligent monitoring is a practical obligation of the creditor.

Ranking of mortgages: who gets paid first?

The rule of principle is simple: the ranking of a mortgage is determined by the date of registration at the Land Registry Office. The first mortgage registered takes precedence over all subsequent mortgages. When a property is sold (compulsorily or amicably), the price is distributed among the mortgagees in the order of their rank: the first is paid in full before the second, the second before the third, and so on until the price is exhausted.

There are several subtleties to this mechanism. The first is something that the 2006 and 2021 ordinances sought to eliminate: the retroactive registration. The former special real estate liens could produce their effects on a date prior to that of their registration. This is no longer the case for security interests created after 1 January 2022 (the date on which Order 2021-1192 comes into force). Ranking is based exclusively on the date of registration, and the register is once again fully legible.

The second subtlety relates to publications on the same day. The 3rd Civil Chamber of the Court of Cassation resolved a delicate issue in its judgment of 7 November 2024 (no. 23-12.514, published in the Bulletin): when a mortgage registration and a deed transferring ownership must be published on the same day, the ranking is not governed by the order of the SPF register, but by the date of the title of the registration. If the title is prior to the competing deed, the mortgage is deemed to rank prior. This solution is counter-intuitive and is now a central argument in discharge and purge disputes.

The third, more technical subtlety is that creditors can conventionally change the order of their ranks. This is the subordination agreement (or anteriority), validated by case law provided that it does not prejudice third parties. The 3rd Civil Chamber confirmed this on 5 September 2024 (no. 21-15.829, published in the Bulletin). In practice, such agreements are common in refinancing transactions where one bank agrees to assign its ranking to another.

Realising the mortgage: seizure, allocation, commissory agreement

The mortgage is useless as long as the debtor pays. Its full value becomes apparent at the time of default. There are three ways of realising a mortgage, of which only one is the main one.

Foreclosure, the main route

The common law route is the foreclosure, This is governed by articles L. 311-1 et seq. of the French Code of Civil Enforcement Procedures. The mortgagee, in possession of a writ of execution, issues a summons to pay in the form of a seizure order, which is published in the SPF, and then summonses the debtor to a preliminary hearing before the enforcement judge. At the end of the procedure, the property is sold by public auction (forced sale) or by mutual agreement with the authorisation of the JEX (authorised amicable sale). Our foreclosure guide details each stage and the defences available to the debtor.

Property seizure is still the most common method in practice, because it leads to a controlled forced sale and a transparent distribution of the price. But it is cumbersome, time-consuming (six to eighteen months on average) and costly. The two alternative routes opened up by the ordinances of 2006 and 2021 are aimed precisely at easing this circuit.

Judicial attribution

Under article 2458 of the Civil Code, a mortgagee may apply to the courts for the cancellation of a mortgage.’allocation of the property in payment, in the event of non-payment on the due date. If the value exceeds the claim, the creditor must pay the balance; if it is less, the creditor remains liable for the balance. Judicial allocation avoids the auction procedure and its risks. It is, however prohibited when the property is the debtor's principal residence - protection introduced by the 2006 Order and maintained. And the doctrine considers that it is in practice reserved for the first-ranking creditor: to allow a second-ranking creditor to obtain attribution would be tantamount to calling into question the order of preferences (Fasc. 737, § 7100).

The commissory agreement

Article 2459 of the Civil Code authorises the parties to agree, in the deed constituting the mortgage, that the creditor will become by operation of law owner of the building in the event of non-payment. This is the commissory agreement, This clause had long been banned in French law because it was seen as a risk of abuse by the creditor against a debtor in difficulty. The Order of 23 March 2006 reintroduced it, subject to two conditions: the value of the property must be determined by an expert, and the clause must be "reasonable". no effect on the debtor's main residence. This is a cardinal protection for the individual debtor: neither judicial allocation nor the commissoire agreement can cause him to lose his main home.

In practice, commissory agreements are still rare. Notaries are reluctant to stipulate them, aware of the risk of disputes when they are implemented, and legal writers have noted that they have not met with the expected success (JurisClasseur Fasc. 737, § 411). It must be strictly distinguished from the clause de voie parée - whereby the creditor would authorise himself to have the property sold without going through the seizure procedure - which remains prohibited by article L. 311-3 of the CPCE.

Selling a mortgaged property and extinguishing the mortgage

The mortgage does not paralyse ownership: the debtor retains the right to sell the property, rent it out or place a second charge on it. In practice, however, the existence of a mortgage means that the sale is mechanical.

The sale of an encumbered asset: notarial practice

When a vendor sells a mortgaged property, the notary who receives the sale consults the property file and identifies any outstanding registrations. It asks mortgagees about the balance due and requests the release of their registrations. In return, the notary undertakes to deduct from the sale price the amount required to repay each creditor. Once these repayments have been made, the registrations are cancelled and the buyer receives a property free of all encumbrances.

This mechanism is so commonplace as to be invisible. But it has a strong practical consequence: in practice, it is impossible to sell a property without repaying the registered banks. Some sellers hope to sell while keeping their current mortgage, in order to take advantage of a historically low rate on a new project. This is a false good idea. A mortgage is a loan assigned within the meaning of article L. 313-1 of the French Consumer Code: the sale of the asset financed automatically terminates the loan and the outstanding capital becomes immediately due and payable. The bank will deduct the amount due from the sale price and will also receive the’early repayment indemnity up to 3 % of the outstanding capital (article R. 313-25 of the French Consumer Code).

A useful nuance: not all mortgages are secured by a mortgage. When the guarantee is a deposit (Crédit Logement in particular), no entry appears in the property register. The notary then has no way of detecting the existence of the loan - unless he informs the vendor. However, concealment is still illegal: the borrower has a contractual obligation to allocate the loan to the property, and the bank can terminate the loan if it is discovered.

Discharge of the mortgage

La release is the act by which the mortgagee renounces his registration. In principle, it is agreed voluntarily by the creditor once he has been paid. It may also be ordered by the court in the event of unjustified refusal, or pronounced ex officio in the event of lapse. To have any effect on the register, the release must itself be published to the land registry. The cost of this publication - notary's fees, disbursements, taxes - is generally between 0.3 % and 0.7 % of the initial capital. For a registration relating to a €350,000 loan, the cost would be in the region of 0.2 to 0.3 % of the capital, i.e. approximately €700 to €1,050.

Purging by the third party purchaser

When an encumbered property is sold without the prior consent of the registered creditor, the purchaser has a special option: the purge, This procedure is governed by articles 2475 et seq. of the French Civil Code. It enables the seller to notify the registered creditors of the price he has paid and force them to make a decision: either they accept the price and receive their share, or they request an auction, with the onus on them to cover any shortfall. The purge is a technical procedure that is rarely used because the traditional route (prior release at the time of the notarised sale) is simpler, but it remains a useful tool in contentious sales or complex estates.

Mortgages, insolvency proceedings and overindebtedness

The fate of mortgages in the context of insolvency proceedings or overindebtedness is one of the most difficult issues in this area. Three rules should be borne in mind.

Firstly, when safeguard, reorganisation or compulsory liquidation proceedings are initiated, the’Article L. 622-30 of the French Commercial Code prohibits the registration of any legal security on the debtor's assets for debts arising prior to the opening of the insolvency proceedings. The penalty is clear: registration in breach of this prohibition is prohibited. no and the enforcement judge can order its release. The Commercial Chamber of the Court of Cassation reiterated this on 2 July 2025 (no. 24-13.438, published in the Bulletin): the JEX may order the discharge even during the execution of the safeguard plan, provided that the registration has breached the prohibition. Creditors wishing to preserve their rights must therefore make their claims known - not register them.

Secondly, in terms of over-indebtedness, Article L. 722-2 of the Consumer Code contains a similar prohibition: the decision declaring the overindebtedness case admissible prevents the creditor from taking a guarantee, security or protective measure over the debtor's assets. The 2nd Civil Chamber confirmed this without qualification on 28 March 2024 (no. 22-12.797): this includes a provisional judicial mortgage. A creditor who registers a mortgage is liable to have it struck off immediately.

Finally, the mortgage already registered before the commencement of the proceedings retains its rank. Mortgagees are preferred creditors. They declare their claim, participate in the distribution of the sale price of the property if it is sold as part of the plan or liquidation (article L. 643-8 of the Commercial Code), and benefit from their ranking on the price. It should be noted, however, that a judicial assignment or a commissory agreement can only be enforced against the collective proceedings if they have become enforceable. before the opening judgment (Cass. com., 19 Sept. 2018, no. 17-14.964). Our insolvency proceedings guide takes a closer look at what happens to security interests in this context.

Changes introduced by the Order of 15 September 2021

Order no. 2021-1192 of 15 September 2021, which came into force on 1 January 2022, was the most significant overhaul of the law on securities since the creation of Book IV of the Civil Code by the Order of 23 March 2006. Three changes should be highlighted in relation to mortgages.

Firstly, the general renumbering articles. The former article 2393 (definition) has become article 2385; the former 2413 (notarial deed) has become 2409; and so on. Practitioners should bear in mind that notarial deeds drawn up before 2022 cite articles that have now been superseded, but are not obsolete. The JurisClasseur publishes a concordance table which is still in daily use.

Secondly, and this is probably the most emblematic measure, the transformation of special real estate liens into special legal mortgages (new article 2402). This transformation eliminates the retroactive nature of the registration: old liens retained a rank on the date of the event that gave rise to them, which made the mortgage register incomplete and misleading. Henceforth, a single rule governs the ranking of security interests created after 1 January 2022: the date of registration. However, old liens created and registered before this date will retain their initial effects - hence the transitional period, which you need to know how to manage.

Lastly, the ordinance strengthened the effectiveness of mortgages through a series of technical measures: extension of derogations from the prohibition on mortgaging future assets, extension of mortgage cover to accessories to the claim in the event of subrogation, and the possibility of dematerialising the authenticated deed. These adjustments do not revolutionise the subject matter, but make it more practical.

Comparison of the three types of mortgage

Type	Source	Formalism	Rank	Typical use
Conventional	Agreement between creditor and settlor	Notarial deed with penalty of validity (art. 2409)	Date of registration in the SPF (retroactive to the deed if published within 2 months)	Mortgages, business loans
Special legal	The law (art. 2402)	Automatic registration on legal title	Date of registration since 2022 (no longer retroactive)	Unpaid seller, lender, co-ownership association, Treasury
Judicial conservatory	JEX decision (L. 511-1 CPCE)	Provisional advertising then conversion to final advertising (R. 532-1, R. 533-4 CPCE)	Date of provisional registration, subject to conversion to definitive registration	Creditor without an enforceable title faced with a debtor whose recovery is threatened

For creditors seeking to secure a claim, this table guides the choice: if you have a title, you choose a judicial mortgage; if you are dealing with a consenting debtor and are financing an acquisition, you choose a conventional mortgage; if you claim a legal status (vendor, moneylender), you benefit from a special legal mortgage.