Eviction: the bailiff must notify the prefect from the order to leave the premises

Imagine the scene: in Béziers, a landlord has just obtained an interim order for the eviction of his tenant. Relieved, he instructs a bailiff to serve an order to leave the premises. But the bailiff forgets a crucial formality: informing the prefect. The result? The procedure is challenged, and the tenant stays. This situation, unfortunately common, raises an essential question: what are the bailiff's obligations before being able to evict?

The answer is in a judgment of the Court of Cassation of 19 May 2010 (No. 09-12.424). The judges remind that, in accordance with Article 62 of the Law of 9 July 1991 and Article 197 of the Decree of 31 July 1992, the bailiff must, upon service of the order to vacate the premises used as the principal residence, send a copy of this document to the prefect and communicate all useful information concerning the person concerned. Without this mandatory notification, the eviction procedure is irregular.

But what exactly does this change for you, landlord or tenant? Let's decipher this decision step by step.

The facts: a story that happens every day

Mr X, a landlord in Béziers, rented a flat to Mrs Y. Due to unpaid rent, he obtained an interim order from the Regional Court (tribunal de grande instance) of Montpellier ordering the eviction of the tenant. On 3 October 2007, a bailiff served an order to leave the premises. But Mrs Y challenged the regularity of the procedure before the enforcement judge (juge de l'exécution), arguing that the bailiff had not notified the prefect of the Hérault department of the order.

The Court of Appeal of Montpellier, sitting as an enforcement judge, dismissed the challenge. It considered that Mrs Y's claim was unfounded. Unsatisfied, Mrs Y appealed to the Court of Cassation. The Court of Cassation overturned the Court of Appeal: it had not investigated whether the bailiff had indeed sent a copy of the order to the prefect and provided the useful information. However, this notification is mandatory to allow the prefect to organise, if necessary, the rehousing of the tenant. Without this verification, the judgment lacks a legal basis.

In other words, even if the landlord wins on the merits, a procedural defect can cause everything to fail. This is a twist I have seen in my practice: in Palavas-les-Flots, a landlord had to wait an additional six months because the bailiff had neglected this formality.

The reasoning of the court — dissected

The legal basis for this decision is twofold: Article 62 of the Law of 9 July 1991 (which sets out the rules for eviction procedure) and Article 197 of the Decree of 31 July 1992 (which specifies the modalities). The first provides that the bailiff must inform the prefect of any eviction from a principal residence. The second requires attaching a copy of the order and all information about the evicted person.

In short, the legislature intended to protect tenants in precarious situations. The prefect, once informed, can then offer alternative accommodation or trigger the winter truce. Without this notification, the eviction could take place without the authorities being able to intervene.

In the judgment of 19 May 2010, the Court of Cassation does not rule on the merits of the eviction. It confines itself to a review of form: did the Court of Appeal properly verify that the bailiff had fulfilled his duty to inform? Since it did not, its reasoning is insufficient. This is a decision of censure for lack of legal basis, not a reversal of precedent. It confirms an already existing obligation, but reminds of its strictness.

What few people know is that this notification must be made at the time of service of the order, not at the time of the actual eviction. Many bailiffs wait too long, exposing the landlord to nullity of the procedure. undefined, I have come across cases where the eviction had to be started from scratch, with additional costs.

What this means for you — concretely

For the landlord: You must imperatively check that your bailiff has notified the prefect of the order. Demand written proof. Otherwise, your procedure can be annulled, as in Palavas-les-Flots where a landlady lost two months and had to pay new bailiff fees (around €200). If you are in this situation, you must challenge the absence of notification as soon as you become aware of it.

For the tenant: If you receive an order to leave the premises, check that the bailiff has indeed informed the prefect. You can request a copy of the notification. If it is missing, you can apply to the enforcement judge to have the procedure annulled. This is a powerful defence, especially during the winter truce (1 November to 31 March).

For professionals (estate agents, property managers): Advise your landlord clients to follow the procedure step by step. A simple omission can be costly. For example, in Béziers, an administrator had to reimburse €1,500 in procedural costs to his client because the bailiff had not notified the prefect.

Four tips to avoid this type of dispute

• Check the prefectoral notification from the order: Ask the bailiff to provide you with a receipt of the transmission to the prefect. Keep it in your file.
• Do not let up after the order: The eviction procedure is technical. Follow each step with your lawyer or a professional.
• Anticipate challenges: If the tenant is acting in bad faith, he will look for procedural defects. Ensure that the bailiff complies with all formalities, including the two-month period between the order and the eviction.
• Use a specialised bailiff: Not all bailiffs are proficient in eviction procedures. Choose an experienced professional within the jurisdiction of your court.

Further reading: related case law and developments

This decision is part of a series of judgments that strengthen tenants' rights in evictions. For example, the Court of Cassation has held (Civ. 2e, 12 June 2008, No. 07-15.664) that the absence of notification to the prefect justifies the stay of the eviction procedure. More recently, the ALUR Law of 24 March 2014 increased the bailiff's obligations regarding information to the prefect.

The trend is clear: judges want to protect the housing of vulnerable persons. Any omission by the bailiff, even minor, can lead to the annulment of the procedure. For the future, expect courts to be increasingly strict on these formalities.

Summary and next steps

What to do if you are a landlord: 1. Check that the bailiff has notified the prefect of the order. 2. If in doubt, consult a lawyer. 3. If the notification is missing, ask the bailiff to regularise immediately.

What to do if you are a tenant: 1. Have you received an order? Ask for proof of notification. 2. If it is missing, apply to the enforcement judge within one month of service. 3. You may obtain a suspension of the eviction.

FAQ:

• Q: Must the bailiff notify the prefect even outside the winter truce? A: Yes, the obligation is permanent.
• Q: What happens if the prefect is not informed? A: The eviction procedure may be annulled.
• Q: Can I evict without a prior order? A: No, the order is mandatory.
• Q: How long after the order can eviction take place? A: At least two months, unless the judge decides otherwise.

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