Astreinte and Enforcement: A Distinction That Changes Everything for Your Property Disputes

Imagine: you own a house in Changé, in the Sarthe. For months, the neighbouring tennis club has been hosting noisy parties until 2 a.m. You obtain a judgment ordering the club to cease the nuisance, subject to an astreinte of €100 per day of delay. Relieved, you think the matter is settled. But the club continues its activities. You go back to court to have the astreinte enforced (liquidated), and then, surprise: the procedure is more complex than expected. Why? Because French law distinguishes the astreinte – a pecuniary threat to compel performance – from enforcement itself, which allows seizure of assets or eviction. This nuance, established by the Court of Cassation on 16 July 1992, has immediate practical consequences for any owner, tenant or co-owner seeking to enforce a judgment. Here’s an explanation.

The Facts: An Everyday Story

The case began in Versailles, but it could just as easily have taken place in Sablé-sur-Sarthe or Changé. A company and a sports club operated activities that generated noise and odour nuisance for neighbours. In 1987, the Versailles Court of Appeal issued a final judgment: it held that these nuisances were abnormal and ordered the operators to cease their activities, subject to a definitive astreinte. In practice, the judgment specified that the astreinte would run as long as the nuisances persisted. The neighbours, owners of a semi-detached house, thought they had won. But the company and the club did not stop their activities. The neighbours then applied to the enforcement judge (the judge specialised in enforcing decisions) to have the astreinte liquidated, i.e., to calculate the amount due. The question that arose was whether this request fell under the enforcement procedure (Articles 570 et seq. of the new Code of Civil Procedure) or was independent. The Tribunal de grande instance of Versailles, and then the Court of Appeal, gave contradictory decisions. Finally, the Court of Cassation was asked to rule.

The Reasoning of the Court – Explained

The Court of Cassation, in its judgment of 16 July 1992, answered in the negative: the astreinte is not a method of enforcement of judgments. To understand this, we must distinguish two concepts. On the one hand, enforcement (Articles 570 et seq. of the new Code of Civil Procedure) is the set of enforcement methods (seizure, eviction, etc.) that allow material compulsion of a person to obey a judgment. On the other hand, the astreinte is an accessory and contingent pecuniary penalty: its purpose is to deter the debtor from failing to perform, and it becomes due only if the debtor persists in non-performance. The lower courts had held that the application to liquidate the astreinte had to follow the procedure under Articles 570 et seq., but the Court of Cassation overturned this. It held that the astreinte does not fall within the scope of those articles. The reasoning is simple: enforcement aims to obtain the material performance of the judgment (e.g., eviction of a tenant), whereas the astreinte aims to punish and incentivise performance. They are not interchangeable mechanisms. This decision is a confirmation of earlier case law (notably a judgment of 5 March 1991) and not a reversal. The parties' arguments? The neighbours argued that the astreinte should be liquidated by the enforcement judge, while the company argued that the procedure was incorrectly initiated. The Court ruled in favour of the neighbours on the merits, but clarified the procedural framework.

What This Means for You – Practically

For a landlord in Changé: if your tenant does not pay rent and you obtain an eviction judgment with an astreinte, the application to liquidate the astreinte (to obtain the amount due) is not subject to the same rules as the eviction itself. You can apply to the enforcement judge without going through the standard enforcement procedure, which is often faster. For a co-owner in Sablé-sur-Sarthe: if your co-ownership syndic fails to carry out works ordered by the court, the astreinte can be liquidated without having to initiate a seizure. The amount of the astreinte can reach several thousand euros: for example, an astreinte of €50 per day for 6 months = €9,000. For an owner suffering nuisance: this decision allows you to apply for liquidation of the astreinte without waiting for the enforcement procedure to conclude. But beware: the astreinte only runs from the service of the judgment that imposes it. If you are in this situation, you must keep all evidence of the persistence of the nuisance (bailiff's reports, photos, witness statements) to justify the liquidation. Timeframes? Liquidation can take a few weeks if the file is well prepared.

Four Tips to Avoid This Type of Dispute

• Have the nuisance recorded by a commissaire de justice (formerly bailiff) as soon as the first incidents occur. A dated and detailed report is the best evidence before the court.
• Do not wait to act. Once you obtain the judgment, have it served on the opposing party as soon as possible. The astreinte only runs from that service.
• Consider mediation before litigation. In Changé as in Sablé-sur-Sarthe, an amicable agreement can avoid months of proceedings. The commercial court or the local judge can guide you.
• Keep a record of all steps taken. Emails, registered letters, phone calls: anything that shows you tried to resolve the dispute amicably strengthens your case.
• Consult a specialist lawyer as soon as the conflict escalates. A simple procedural error (such as applying to the wrong court) can lose everything.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of Court of Cassation judgments. One can cite a judgment of 5 March 1991 (No. 89-21.456) which had already distinguished the astreinte from enforcement. More recently, the Court has reiterated that the astreinte can be liquidated even if the principal decision has not been enforced (Civ. 2e, 10 September 2020, No. 19-18.234). The trend is therefore towards protecting the creditor of the astreinte: the judge cannot refuse to liquidate it on the ground that enforcement has not been attempted. For the future, this distinction could be challenged if the legislator were to unify the procedures, but for now, it remains a pillar of enforcement law.

In Practice: What to Do

Checklist: What to do if you have obtained a judgment with an astreinte

• Have the judgment served on the opposing party by a commissaire de justice.
• If the nuisance persists, obtain a new report.
• Apply to the enforcement judge (Tribunal judiciaire) for liquidation of the astreinte. No need to go through enforcement.
• Attach all supporting documents (reports, photos, letters).
• Claim the exact amount: number of days × daily amount.
• If the astreinte is not paid, you can then initiate a seizure of bank account or wages.

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