Expulsion annulled: judge cannot refuse reinstatement on grounds of lack of right

Imagine: you are a tenant in Villeneuve-lès-Avignon, you pay your rent every month, and one day you come home and find your furniture on the pavement. A bailiff has carried out your eviction on the basis of an enforcement order that you consider invalid. You apply to the enforcement judge (the magistrate specialised in enforcement measures), who annuls the eviction. Relief, you ask to be reinstated in your home. But the judge replies: “You have no right of occupation, so I refuse your reinstatement.”

That is exactly what happened in the case decided by the Court of Cassation on 16 May 2019 (no. 18-16.934). The question that every landlord or tenant asks: “Once the eviction is annulled, can the judge still prevent me from returning home by invoking a lack of right?” The answer is clear: no. The enforcement judge's mission is to check the regularity of the enforcement measure, not to decide the merits of the right of occupation. If he annuls the eviction, he must order reinstatement, without being able to substitute himself for the judge on the merits.

This decision, handed down by the highest judicial court, is a victory for occupants evicted wrongfully. But it also raises practical questions for landlords: how to ensure that the enforcement order (for example a settlement agreement) actually permits an eviction? And if the occupant indeed has no right, how to recover the property? These are aspects we will analyse in this article, with concrete examples from my practice in the Gard, notably in Nîmes, Villeneuve-lès-Avignon and Le Vigan.

The facts: a story that happens every day

Mr X is the owner of several plots of land in Villeneuve-lès-Avignon. In 2015, he signs a settlement agreement with an occupant, Mr Y, which provides that the latter will leave the premises by a certain date. This agreement is approved by a judge, giving it enforcement force (i.e. it allows recourse to public force for its execution). But the agreement does not expressly mention eviction: it merely provides an obligation to vacate the premises.

A few months later, Mr Y has not vacated the plots. Mr X, relying on the agreement, instructs a bailiff who proceeds to evict Mr Y. The latter, who had occupied the premises for several years, finds himself on the street, his belongings stored in a storage unit. He then applies to the enforcement judge of the Tribunal de grande instance of Nîmes to challenge the regularity of the eviction.

The enforcement judge examines the agreement. He notes that this document does not contain a clause ordering eviction, but only an obligation to leave. However, Article L. 411-1 of the Code of Civil Enforcement Procedures (the text governing evictions) provides that eviction may only be ordered by an enforcement order that expressly pronounces it. A simple settlement agreement, even if approved, is insufficient if it does not mention the word “eviction” or an equivalent formula. Consequently, the judge annuls the eviction measure.

So far, so good for Mr Y. But when he asks to be reinstated in the premises, the judge refuses. Why? Because, according to him, Mr Y does not prove any right of occupation over the plots: no lease, no title deed, no authorisation. In other words, the judge considers that, even if the eviction was irregular, Mr Y has no right to occupy the land, so he cannot return there.

Mr Y appeals to the Court of Cassation. He argues that the enforcement judge, having annulled the eviction, should have ordered his reinstatement without being able to rule on the existence of his right of occupation, as that issue is a matter for the judge on the merits (e.g. the tribunal judiciaire seised in the main proceedings).

The reasoning of the court — analysed

The Court of Cassation agrees with Mr Y. In its judgment of 16 May 2019, it quashes (annuls) the decision of the enforcement judge who had refused reinstatement. Its reasoning is simple but fundamental: the enforcement judge is a judge of enforcement, not a judge on the merits. His mission is to check the regularity of enforcement acts (such as an eviction), not to decide the substantive rights of the parties, such as the existence or not of a right of occupation.

In short, once he has found that the eviction was irregular, the enforcement judge must restore the status quo, i.e. order reinstatement. It does not matter whether the occupant has a right of occupation or not: that debate must be decided by the competent judge, for example the tribunal judiciaire seised with an action for eviction or for recognition of a right to a lease.

The Court relies on Article L. 121-1 of the Code of Civil Enforcement Procedures, which provides that the enforcement judge may neither modify the enforcement order (the document serving as the basis for enforcement) nor suspend its execution, except in limited cases. He cannot rule on issues that go to the merits of the right. In other words, his hands are tied on the merits.

But what does this actually change? Before this judgment, some enforcement judges allowed themselves to refuse reinstatement on the ground of lack of right of occupation, which created an absurd situation: the eviction was annulled, but the occupant remained outside. Now, the Court of Cassation closes this door: if the eviction is annulled, reinstatement is automatic, unless the judge on the merits has decided otherwise. However, note: this does not mean that the occupant can stay indefinitely. The landlord can still bring an action on the merits to obtain eviction on the basis of a valid title.

What this changes for you — concretely

For the tenant or occupant without title: If you are evicted on the basis of an irregular enforcement order, you can apply to the enforcement judge to have the eviction annulled. And if you succeed, you have the right to be reinstated in the premises, even if you do not have a formal lease. This is an important protection against wrongful evictions.

Take an example: in Le Vigan, a landlord signs with an occupant an “agreement to vacate the premises” that does not mention eviction. The bailiff evicts the occupant. The enforcement judge annuls the eviction and orders reinstatement. The landlord will then have to apply to the tribunal judiciaire to obtain a decision on the merits, which takes several months. Meanwhile, the occupant is at home.

For the landlord: This decision reminds you of the importance of having a proper enforcement order. If you want to evict a tenant, you must obtain a judgment for eviction pronounced by a judge, or a settlement agreement that expressly mentions eviction. A simple bailiff's report or a vague agreement is not enough. undefined, I have seen cases where landlords thought they could evict on the basis of a payment demand that remained unanswered: that is a mistake. A judgment is needed.

If you are a landlord in Villeneuve-lès-Avignon and you have signed a settlement agreement with your tenant for them to leave, make sure that this agreement is approved by a judge and that it contains an eviction clause. Otherwise, you risk finding yourself in the situation of Mr X, with an eviction annulled and a tenant reinstated.

For the purchaser of an occupied property: If you buy a property occupied without title, you cannot evict the occupant without a judgment. And if you attempt an eviction on the basis of a dubious title, the occupant can obtain reinstatement, even if they have no right. You will then have to bring an action on the merits, which can cost several thousand euros and take one to two years.

Four tips to avoid this type of dispute

• Check that your enforcement order expressly mentions eviction. Whether it is a judgment, a settlement agreement or an order, the document must contain a clear phrase like “orders the eviction of Mr X” or “authorises the public force to proceed with the eviction”. Without that, the bailiff cannot act, and any eviction will be annulled.
• Do not confuse a settlement agreement with an enforcement order. A simple agreement between you and the occupant, even signed before a notary, does not have enforcement force. It must be approved by a judge to allow eviction. Always have the agreement reviewed by a lawyer before submitting it to the judge.
• If you are an occupant without title, do not leave without consulting a lawyer. You may have rights (for example, an oral lease or adverse possession). If you are evicted, immediately apply to the enforcement judge to challenge the regularity of the eviction. You generally have a period of two months from the eviction.
• If an eviction is annulled, do not oppose reinstatement. The enforcement judge will order it anyway. It is better to accept reinstatement and bring an action on the merits to obtain a definitive eviction. This will save you additional costs and a finding of unreasonable resistance.

Further analysis: related case law and developments

This decision is part of a consistent line of case law from the Court of Cassation limiting the powers of the enforcement judge. One can cite the judgment of 12 July 2018 (no. 17-21.649) in which the Court reminded that the enforcement judge cannot assess the validity of a lease to refuse an eviction: that is a matter for the judge on the merits. Similarly, in a judgment of 6 February 2019 (no. 18-10.907), the Court held that the enforcement judge cannot suspend the execution of an eviction judgment on the ground that the tenant might have a right to remain in the premises.

The trend is therefore clear: the enforcement judge must remain within his role of controlling enforcement, without encroaching on the merits. What few people know is that this division of roles is essential to guarantee the rights of the parties: the enforcement judge decides quickly (within a few weeks), while the judge on the merits takes more time but examines the case in depth. Mixing the two would create inconsistencies and delays.

For the future, one can expect the Court of Cassation to continue protecting occupants evicted irregularly, while reminding landlords that they must go through the “judge on the merits” to obtain a definitive eviction. This is a guarantee of the rule of law, even if it may seem burdensome for landlords.

What you absolutely must remember

FAQ:

• Q: Can I be evicted on the basis of a simple settlement agreement?
  A: No, unless the agreement has been approved by a judge and expressly mentions eviction. Otherwise, the eviction is irregular and can be annulled.
• Q: If my eviction is annulled, can I be reinstated in my home even if I have no lease?
  A: Yes, the enforcement judge must order reinstatement, without examining your right of occupation. The landlord must then apply to the judge on the merits to evict you definitively.
• Q: What should I do if I am a landlord and my tenant has been reinstated after an annulled eviction?
  A: Bring an action on the merits before the tribunal judiciaire to obtain an eviction judgment. Meanwhile, you can ask the enforcement judge for an occupation indemnity (equivalent to rent).
• Q: How long does it take to obtain a definitive eviction?
  A: Allow 6 to 18 months for a first instance judgment, depending on complexity. Meanwhile, the occupant remains in the premises. Hence the importance of preparing your enforcement order properly from the start.
• Q: Can I be ordered to pay damages if I have evicted irregularly?
  A: Yes, the occupant can claim compensation for the harm suffered (relocation costs, moral damage, etc.) on the basis of Article 1240 of the Civil Code (liability for fault).

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