The auction judgement is not a judgement like any other. Not only does it record the outcome of the auction, but it also constitutes a writ of eviction against the distrainee and any occupant on its behalf. However, its delivery to the successful bidder is problematic, and its exact characteristics are not well known.
Obtaining the adjudication judgment
The auction judgement is not handed over to the successful bidderit is attached to the bill of sale. The successful bidder who wishes to obtain this judgment must extract it from the bill of sale. The bill of sale consists of :
- the terms and conditions of sale,
- appendices,
- a receipt for expenses,
- of the judgement of adjudication
- and the executory formula.
The deed of sale is given to the successful bidder once the receipt certifying payment of the taxed costs has been deposited with the auction registry. In addition, it must be published in the property register in order to be enforceable against third parties.
To carry out this publication, the land registry needs to have the original copy of the title. Unfortunately, the bailiff also needs an original copy to carry out any eviction. This is an intractable difficulty that results from the legislator's poor conception of the text.
Mandatory information in the auction judgement
The content of the auction judgement is strictly governed by article R. 322-59 of the French Code of Civil Enforcement Procedures. This text imposes specific details in addition to those required for all judgements.
According to this article, the judgment must mention :
- The orientation judgement, judgements settling any disputes, and the terms and conditions of sale.
- The identity of the pursuing creditor or the creditor subrogated to its rights
- Advertising formalities completed and their precise dates
- Full description of the property awarded
- The date and place of the forced sale
- The precise identity of the successful bidder
- The auction price obtained
- The amount of taxed costs to be paid by the successful bidder
- Any disputes that may arise
This last point is of particular importance because it determines the possibilities of appealing against the award judgement, as we shall see below.
It is in the best interests of the successful bidder's lawyer to check these details, as an error, particularly in identifying his client, could lead to difficulties when the judgement is published in the property register.
Notification of the auction judgement
Once issued, the parties concerned must be notified of the auction judgement. According to article R. 322-60 of the Code of Civil Enforcement Procedures, notification is the responsibility of the pursuing creditor, who must send it to the distrainee debtor, the registered creditors, the successful bidder and any person who has raised a challenge to the decision.
The judgement of adjudication as a writ of eviction
The auction judgement has one notable feature: it automatically constitutes an eviction order against the distrainee. This is expressly provided for in article L. 322-13 of the Code of Civil Enforcement Procedures.
This is an important point for the successful bidder, who may be faced with a refusal by the distrainee to leave the premises. The judgement will enable the purchaser to initiate eviction proceedings directly, without first having to apply for another writ of execution.
However, this option is limited by article R. 322-64 of the same code, which states that the successful bidder may only enforce this eviction order once the price has been paid or deposited and the taxed costs have been paid. This condition protects the distrainee from premature eviction.
This eviction order is valid not only against the distrainee itself, but also against "any occupier in his own right having no rights enforceable against him".. This means that persons authorised by the distrainee to occupy the property, without having a right of their own, can also be evicted on this basis.
On the other hand, a tenant who held a lease prior to the issuing of the summons to pay in lieu of seizure of the property may enforce his contract against the successful bidder. In a ruling handed down on 27 February 2020 (2nd Civil Division, no. 18-19.174), the Court of Cassation stated that even leases entered into after publication of the summons to pay may be enforceable if the successful bidder was aware of them before the auction.
Lastly, article 20 of the general provisions of the sales conditions stipulates that "The purchaser will personally take care of any necessary evictions, without recourse against anyone, and will benefit from any occupancy indemnities that may be due.
It is worth noting that, unlike ordinary evictions, those based on a judgment of adjudication may not be suspended. The article L. 722-8 of the French Consumer Code explicitly excludes this possibility.
Recourse against the adjudication decision
The rules governing appeals against the auction judgement are very restrictive. Article R. 322-60, paragraph 2, of the Code of Civil Enforcement Procedures states that "Only an adjudication ruling on a dispute may be appealed on this ground within fifteen days of its notification.
This limitation is regularly confirmed by the Cour de cassation. In a ruling dated 6 January 2011 (2nd Civil Division, no. 09-70.437), it stated that "The adjudication judgment that does not rule on any dispute or incidental claim is not subject to appeal.
In practical terms, only those provisions of the judgment that rule on a dispute raised at the hearing may be appealed. For example, if the winning bidder contested the validity of an auction and the judge ruled on this issue in his judgment, that part of the decision may be appealed.
The appeal period is 15 days from notification.
Although, in principle, the adjudication decision is not subject to ordinary appeal, case law has nevertheless allowed an appeal on the grounds of ultra vires (Civ. 2e, 22 November 2001, no. 00-13.773; Civ. 2e, 6 December 2012, no. 11-24.028).
On the other hand, an application for judicial review seems to be excluded. The Court of Cassation traditionally considers that "the adjudication decision, which does not rule on any incident, merely establishes a judicial contract and does not have the character of a judgment". (2nd Civil Division, 20 May 1985, no. 83-16.680). It deduced that this type of decision could not be the subject of an application for review.
However, there may be a change in the case law. In a recent decision of 14 October 2021, the Rouen Court of Appeal appeared to accept, in principle, the possibility of an application for review of an auction judgement, even where there is no dispute. This position, which departs from the traditional case law of the Cour de cassation, deserves to be carefully monitored.
The restrictive nature of the remedies is explained by the desire to secure the auction and protect the successful bidder. However, this limitation may prove frustrating for the purchaser who discovers an irregularity in the procedure after the auction.
Sources
- Code des procédures civiles d'exécution, articles L. 111-1 et seq., R. 111-1 et seq., in particular articles L. 322-13, R. 322-39 to R. 322-64
- Law no. 65-557 of 10 July 1965 establishing the status of condominiums in built-up areas, article 20
- Decree of 30 June 1977, article 7
- Court of Cassation case law: 2nd Civil Court, 6 January 2011, no. 09-70.437; 2nd Civil Court, 27 February 2020, no. 18-19.174; 2nd Civil Court, 22 November 2001, no. 00-13.773; 2nd Civil Court, 20 May 1985, no. 83-16.680
- Rouen Court of Appeal, 14 October 2021, no. 20/02505
- Fascicule 2035: Civil Procedure - Enforcement Proceedings - General, JurisClasseur Roulois
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