The prospect of a property seizure is a considerable ordeal for any debtor. It represents the culmination of a debt recovery procedure and involves assets of major value, often emotional. Understanding which properties can actually be seized is an essential first step in understanding what is at stake and organising your defence. French law, through the Code of Civil Enforcement Procedures, does not put all property on an equal footing. The procedure itself, for which it is essential to know the process and analysisThis complexity underlines the importance of a clear and precise definition. This complexity underlines the importance of precise identification of the buildingThis is a prerequisite for the validity of the entire procedure. A lawyer competent in property seizures is a key asset in ensuring that the debtor's rights are respected at every stage.
The principle of seizability of immovable property
The basis of any seizure, whether of movable or immovable property, is the general right of lien granted to all creditors. Article 2284 of the Civil Code states that the debtor is obliged to fulfil his commitment on all his assets, present and future. This basic principle means that seizability is the rule, while non-seizability is the exception. In theory, therefore, a creditor in possession of a writ of execution recording a liquid and payable debt can initiate seizure proceedings against any property belonging to the debtor.
However, the Code of Civil Enforcement Procedures specifies and regulates this prerogative. Article L. 311-6 of this code states that, unless otherwise provided by law, the seizure of property may relate to all rights in rem in respect of immovable property and its appurtenances deemed to be immovable property, provided that they are transferable. This provision establishes a direct link between the capacity of a property or right to be sold and its capacity to be seized. In practice, all immovable property and rights that may be subject to a mortgage are also considered seizable. The law distinguishes between several categories of property, each subject to its own seizure rules.
Properties by nature and their seizure
The most obvious category of attachable property is immovable property by nature. This is property that is physically anchored in the ground and cannot be moved. The definition and examples are provided by the Civil Code.
Land and buildings
Article 518 of the Civil Code defines immovables by nature as land and buildings. This category therefore includes the land itself, but also anything incorporated into it in a fixed and permanent manner. Case law and legislation have clarified this concept to include :
- Land, whether built on or not.
- Structures and buildings, whether dwellings, apartment blocks or commercial premises.
- Wind or water mills, provided they are fixed to pillars and form an integral part of the building, as specified in article 519 of the Civil Code.
- Pipes used to conduct water into an inheritance, which are considered part of the land to which they are attached (article 523 of the Civil Code).
- Mines and quarries, which are also immovable property by their very nature.
The seizure applies to all of these items, without it being necessary to list them exhaustively in the summons to pay serving as a seizure, provided that the main land is correctly identified.
Fruit and crops attached to the fund
A frequent question concerns the fate of agricultural produce. According to article 520 of the French Civil Code, crops hanging by their roots and the fruit of trees that have not yet been harvested are likewise immovable property. Consequently, when a property is seized on agricultural land, the seizure automatically includes standing crops. They are considered an accessory to the immovable and will be sold with it.
This immobilisation ceases as soon as the grain is cut or the fruit is removed from the trees. From that point onwards, they become movable property and are no longer subject to seizure of immovable property. They may then be subject to a separate seizure of movable property, known as an attachment for sale. The distinction is therefore temporal and depends on the state of the crop at the time of the proceedings. There are specific rules for determining which crops can be seized and whenThis can have major consequences for farmers.
Buildings by destination: seizure procedures
The concept of immovable property by destination is more subtle. It refers to property that is, by its nature, movable, but which the law considers fictitiously to be immovable because of the link that unites it to a principal asset. This classification has a direct impact on their seizure.
Definition and criteria
Article 524 of the Civil Code defines immovables by destination as objects that the owner of a business has placed there for the service and operation of that business. For movable property to qualify as immovable by destination, two cumulative conditions must be met:
- The unit of ownership : the movable property and the building to which it is attached must belong to the same owner.
- Intent to assign : the owner must have had the intention of permanently linking the movable to the immovable. This link may be economic (animals attached to crops, farming equipment, etc.) or result from a "perpetual attachment" (mirrors, statues, woodwork set into the wall, etc.), as specified in article 525 of the Civil Code.
This category may include industrial equipment, hotel facilities or the livestock of a farm. Recognition of this classification is essential, as it determines the applicable seizure regime.
Seizure independently or with the fund
The rule of principle is that immovable property by destination is seized at the same time as the immovable property by nature of which it is an accessory. They are automatically included in the seizure of the land, even if the summons to pay does not expressly mention them. Their fate is linked to that of the main property.
It is therefore impossible, in principle, to seize them separately through a seizure of property. However, article L. 112-3 of the Code of Civil Enforcement Procedures provides for two exceptions. A separate seizure is possible:
- For the payment of their price : the seller of these goods who has not been paid can have them seized independently of the building.
- For the realisation of the pledge of which they are encumbered : Since the reform of the law on security interests, it has been possible to grant a pledge over immovable property by destination. The pledgee can then have them seized, provided that they can be separated from the building without damage.
Apart from these cases, any attempt to seize them separately would be irregular. Once they have been detached from the business, they revert to the status of mere movable property and may therefore be subject to seizure.
Immovables by the object to which they apply: rights in rem and their seizure
The seizure may relate not only to the full ownership of a property, but also to the rights in rem that apply to it. These rights, although intangible, are considered to be immovable property and may therefore be subject to seizure, provided they are transferable.
Usufruct, bare ownership and other joint rights
Ownership can be divided between several right holders. The main joint rights that can be seized are :
- Usufruct : This is the right to use an asset and receive income from it, without owning it. The usufruct can be seized by the creditors of the usufructuary. The successful bidder will then obtain the right to use the property for the remaining duration of the usufruct.
- Bare ownership : This is the right to dispose of the property, without having the right to use it or receive any of its fruits. Creditors of the bare owner may seize this right. The successful bidder becomes the bare owner and recovers full ownership when the usufruct expires.
It is important to note that the judge cannot order the sale of the full ownership if only the usufructuary or bare owner is the debtor, unless the other right holder agrees. The seizure can only relate to the right held by the debtor. On the other hand, the right of use and dwelling, because of its strictly personal nature, cannot be transferred and therefore cannot be seized.
Long leasehold rights and other real leases
Some lease contracts give the lessee a real right in the property, which can be seized. This is particularly the case for :
- Long lease : This long-term lease (18 to 99 years) gives the lessee (the emphyteutic lessee) a real right that can be mortgaged and therefore seized.
- Construction leases : the lessee undertakes to build structures on the lessor's land and has a real right in these structures for the duration of the lease. This right may also be seized.
- The right of a mining or hydropower concessionaire : These administrative concessions also confer real property rights that can be seized.
Conversely, shares in non-trading property companies (SCI), even if they represent a right in a building, are movable in nature and cannot therefore be subject to a seizure of property. They come under the procedure for seizing partners' rights and securities.
Buildings on other people's land: a specific regime
The situation of buildings erected on land that does not belong to the builder is a frequent source of legal complexity, particularly in terms of seizure. The fate of such buildings depends on the rights of the builder and the choices made by the owner of the land.
The fate of improvements and incorporations
The basic principle is that of accession, set out in article 555 of the Civil Code: the owner of the land becomes the owner of the buildings erected on his or her land. However, the landowner has the choice of requiring the buildings to be demolished at the builder's expense, or retaining ownership of the buildings by paying compensation.
The creditors of the owner of the land may, by means of an action oblique, exercise in his place the right to retain the buildings. In this case, the building and the structures incorporated in it may be seized. Similarly, the mortgage granted by the owner of the land automatically extends to any improvements and constructions made to it. A special case concerns movable property sold with a retention-of-title clause that is subsequently incorporated into a building. If they cannot be removed without deterioration, they lose their movable nature and the retention of title clause becomes ineffective; they are then seized with the building.
Tenant's buildings: rights and limitations
Where the buildings are constructed by a tenant, their fate depends on the terms of the lease. If the lease authorises construction and provides for compensation to be paid to the tenant at the end of the contract, the tenant is deemed to be the owner of the buildings for the duration of the lease. Creditors may therefore seize this temporary right in rem. However, the successful bidder will only acquire a right that is limited in time, which may make the procedure unattractive.
If the lease is silent, the rules of Article 555 of the Civil Code apply at the end of the lease. During the term of the contract, the lessee has a simple right of enjoyment, but the buildings cannot be seized by creditors in the same way as rights in immovable property, as their final fate depends on the decision of the lessor.
Determining which assets and rights can be seized is a technical matter that requires a precise analysis of each situation. An error in the classification of an asset may invalidate the seizure procedure. For an accurate assessment of your situation and to defend your rights effectively, we recommend that you contact our firm.
Sources
- Civil Code
- Code of civil enforcement procedures
- Commercial code
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