Property seizure: the description of the premises must include the legal aspects of the property, according to the Court of Cassation

The First Civil Chamber of the French Supreme Court has just clarified the scope of the obligations of the court commissioner when drawing up a description report in the context of a property seizure. In a ruling handed down on 26 June 2024 (Cass. 1re civ., 26 June 2024, no. 23-13.236, published in the Bulletin), it unambiguously states that the description of the premises "must necessarily include the legal situation of the property" and must include "the encroachment of a property on an adjoining parcel". This decision strengthens the requirements placed on professionals responsible for this essential formality.

The description report: a crucial stage in the foreclosure process

The aim of a property seizure is to sell the property at auction a property belonging to to a defaulting debtor in order to pay off his creditors. Article L. 311-1 of the French Code des procédures civiles d'exécution (CPCE) defines this procedure as involving "the forced sale of the property to which it relates, with a view to the distribution of its price". This procedure is generally initiated after obtaining a writ of execution and seizure of propertyAuctions can attract a variety of buyers, but they are also subject to strict rules to ensure transparency and fairness. Auctions can attract a variety of buyers, but they are also subject to strict rules to ensure that the process is transparent and fair. Once the property is sold, the proceeds are divided among the creditors according to their rank and legal priorities.

Prior to the sale, a number of preparatory steps must be taken. One of the most important of these is the description of the premises. The court commissioner must enter the premises to draw up a detailed description of the property, even if the occupants are absent or resisting, in accordance with article R. 322-1 of the CPCE.

This document must contain, according to article R. 322-2 of the CPCE :

• Description of the premises, their composition and surface area
• Conditions of occupancy and identity of occupants
• The name and address of the condominium manager, if applicable
• Any other useful information about the building

To carry out this task, the auditor may use any appropriate means, such as photographs, and may be assisted by qualified professionals if necessary.

A case that reveals the precision issues at stake

The judgment of 26 June 2024 arose from a classic but poorly managed situation. A couple had taken out a bank loan to purchase several plots of land, secured by a lien and a conventional mortgage. Following a default in payment, the bank took legal action. foreclosure proceedings.

The case has taken an unexpected turn: three and a half years after the start of the proceedings, the summons to pay and all subsequent deeds have been cancelled. The reason? A building located on the seized plots extended partially onto a neighbouring plot not included in the seizure.

The bank then sued the bailiff (now the commissioner) and the lawyers involved, claiming that their misconduct had led to the costly cancellation.

The Cour de cassation broadens the concept of description

The bailiff in question appealed, arguing that the "description of the premises" was limited to their composition and surface area, and did not include their legal status. The Cour de cassation rejected this restrictive interpretation.

According to the high magistrates, "the description of the premises necessarily includes the legal situation of the property and must therefore include the encroachment of a property onto a parcel of land contiguous to that which is the subject of the property seizure". This implies a rigorous assessment of the rights attached to each property concerned. Consequently, when the incidental foreclosure hearingIn this case, the magistrates must carefully examine the evidence and the arguments of the parties. This approach ensures that the legal situation is clearly defined and that the rights of the various owners are respected.

This position reinforces the requirement for potential buyers to be fully informed. It is in line with the principles of transparency and legal certainty.

Practical consequences for legal professionals

This decision increases the responsibility of the auctioneers, who will now have to carefully check the legal aspects of the property before drawing up their minutes.

Lawyers for pursuing creditors are not spared. Previous case law (Civ. 1re, 25 November 2010, no. 09-70.767) had already stated that lawyers would be liable if they had "information likely to arouse their suspicions" regarding a discrepancy in the designation of the seized property.

Practitioners will have to be even more vigilant during the preparatory phase of the seizure of property: they must ensure that all formalities are properly completed and that claims are duly declared. Indeed, the declaration of claim foreclosure is a crucial stage that can influence the outcome of the procedure. Neglect at this stage could result in significant delays or subsequent challenges. In addition, it is essential to take into account the notion of indivisibility and seizure of propertyThis can further complicate the process if several creditors are involved. Practitioners must also anticipate potential conflicts relating to the distribution of claims, as careful management of each party's share is necessary to avoid disputes. By ensuring that all legal requirements are met, professionals can better protect their clients' interests throughout the process.

1. Consult cadastral documents accurately
2. Check the correspondence between property boundaries and existing buildings
3. Ensure that the parcels seized correspond exactly to the mortgaged assets
4. Include in the minutes any relevant legal information, such as easements or encroachments

An incomplete or inaccurate report can lead to the cancellation of the entire procedure, with significant financial consequences for the creditor and the risk of the professionals involved being called into question.

Are you considering or affected by foreclosure proceedings? Our firm can help you with these complex procedures. Experience shows that an in-depth legal analysis prior to the proceedings can often avoid costly disputes later on.

Sources

• Civ. 1st, 26 June 2024, F-B, no. 23-13.236
• Code of civil enforcement procedures, articles L. 311-1, R. 322-1, R. 322-2 and R. 322-3
• Civ. 2e, 15 October 2015, no. 14-16.677, AJDI 2016
• Civ. 1st, 25 November 2010, no. 09-70.767