The mortgage (hypothèque) is the oldest and most powerful real security over immovable property in French law. Reformed by ordonnance no. 2006-346 of 23 March 2006 then profoundly overhauled by Ordonnance no. 2021-1192 of 15 September 2021, it is governed by Articles 2385 to 2474 of the Code civil.

A real right without dispossession

Article 2385: “The mortgage is the allocation of an immovable in guarantee of an obligation without dispossession of the person constituting it.” Three essential elements: it is a real right (directly over the property, opposable to all third-party holders); it covers exclusively immovable property (or real rights over immovables such as usufruct); and it operates without dispossession – the owner retains use, enjoyment and power of disposition.

Three structural characters: indivisibility (encumbers the entire property regardless of remaining debt); accessory character (no claim, no mortgage; claim extinguished, mortgage extinguished); speciality (the deed must identify precisely the encumbered property and the guaranteed amount).

The mortgagee benefits from a right of preference (paid before unsecured and junior mortgagees on the sale price) and a right of pursuit (Article 2454: if the debtor sells, the mortgage follows the property into the purchaser’s hands, who will face seizure if the debt is unpaid).

Three types

Conventional mortgage: Arises from agreement between creditor and owner. Requires a notarial deed on pain of nullity – an under-hand deed constituting a mortgage is null (not merely inopposable). Publication at the land registry (service de publicité foncière) is required for third-party opposability and determines rank. Two-month window from the deed preserves retroactive rank.

Special legal mortgages: The 2021 reform converted all former special immovable privileges (unpaid vendor, lender of purchase monies, co-partitioner, co-ownership syndicate) into special legal mortgages. Key consequence: rank is now determined by registration date, ending former retroactivity. A vendor who omits registration becomes unsecured.

Judicial conservatory mortgage: Authorised by the enforcement judge (JEX) on the basis of Article L. 511-1 CPCE where the claim appears founded in principle and recovery is threatened. Provisional publication fixes opposability pending conversion to definitive registration after obtaining an enforceable title.

Constitution and registration

The notary drafts the notarial deed and prepares the registration bordereau (Article 2428) with mandatory particulars: creditor and debtor identity, cadastral description, guaranteed amount in principal and accessories, maturity, registration duration. Registration is lodged at the service de publicité foncière of the property’s location.

Cost: Between 1.5% and 2% of the guaranteed amount (land registry tax 0.715%, real estate security contribution 0.10%, notary fees, ancillary costs). A 250,000 euro loan secured by mortgage generates 3,750-5,000 euros in registration costs.

Maximum duration: Article 2434 caps registration at 50 years. Lapsed registration loses opposability. Renewal must occur before expiry to preserve original rank (confirmed Cass. 3e civ., 8 January 2026, no. 24-11.645).

Enforcement

If the debtor defaults, the mortgagee may enforce through property seizure (saisie immobilière), governed by Articles L. 311-1 et seq. CPCE. The procedure is judicial, formal and lengthy. The property is sold at auction; the proceeds are distributed according to creditor rank. Alternatively, the new Article 2459 allows judicial attribution of the property (except the debtor’s principal residence) or, where the parties have so stipulated, a pacte commissoire (automatic attribution clause – forbidden for the principal residence under Article 2459).

In insolvency proceedings

The mortgagee’s position depends on the type of proceeding. In safeguard/reorganisation: the mortgagee cannot enforce during the observation period but retains rank on eventual realisation. In liquidation: the property is sold and the mortgagee is paid according to rank, subject only to super-priority claims (salaries, new-money privilege, judicial costs). The 2021 reform’s conversion of special immovable privileges into legal mortgages has simplified ranking but created transitional complexity for pre-2022 registrations.

Solent Avocats acts in mortgage enforcement, mortgage defence and ranking disputes. See our securities guide and enforcement proceedings guide.