Fraudulent Eviction: When the Landlord Loses His Right for Not Having It at the Time of the Fraud

Imagine: you are the owner of a flat in Lourdes, let to a couple who have not paid rent for six months. Tired of it, you decide to cut off the electricity to make them leave. But at the time you act, you do not yet have an enforcement order (a judgment authorising eviction). Later, you obtain this order. Can you still evict? The answer is no, if your action is fraudulent. But beware: the penalty for fraud can only apply to a right that already existed at the date of the fraudulent act. This is what the Court of Cassation recalled in a judgment of 21 January 2009 (No. 07-19.916).

This decision is crucial for all landlords, tenants and property professionals. It sets a limit to the famous maxim 'fraud corrupts everything'. In short, if you commit fraud to evict a tenant, you cannot be deprived of a right you did not yet have at that time. But then, how does this rule apply in practice? And above all, what must be done to avoid such a trap?

In this article, I will tell you the story behind this judgment, analyse the judges' reasoning, and give you practical advice to avoid finding yourself in a similar situation. Whether you are a landlord in Anglet or a tenant in Pau, these rules concern you.

The Facts: A Story That Happens Every Day

Mr X is the owner of a commercial building in Lourdes, let to company Y. This company is in financial difficulty and stops paying rent. The landlord then initiates proceedings to obtain the termination of the lease (the end of the contract) and the eviction of the lessee (the tenant). But, at the same time, he carries out fraudulent acts: he cuts off the electricity, changes the locks, in short, he tries to drive the tenant away by his own means, without waiting for the judgment.

Company Y is placed in judicial liquidation (collective procedure aimed at paying creditors). The liquidator (representative of the creditors) then requests the eviction of the lessee and the payment of an occupation indemnity (sum due for occupation without right). But the landlord, who committed the fraud, is met with the rule 'fraud corrupts everything': he cannot rely on the forfeiture clause (clause of the contract which terminates the lease automatically in case of non-payment) and therefore cannot request eviction.

The Court of Appeal of Pau rejects the landlord's claims. The latter appeals in cassation. He argues that the penalty for fraud cannot deprive him of a right he did not yet have at the time of the fraud. Indeed, at the time he cut off the electricity, the lease had not yet been terminated: he still had the right to grant a lease. Fraud cannot therefore deprive him of his right to obtain termination and eviction, because this right did not yet exist.

The Court of Cassation agrees with him: it quashes (annuls) the judgment of the Court of Appeal and refers the case to another court. It recalls that 'the penalty for fraud can only apply to a right existing at the date on which the fraudulent act was committed'. In other words, one cannot be deprived of a right one did not yet have.

The Reasoning of the Court — Analysed

The reasoning of the lower court (Court of Appeal) was as follows: since the landlord committed fraud to evict the tenant, he is in bad faith and cannot rely on the forfeiture clause. Consequently, he cannot obtain eviction. This is the strict application of the maxim 'fraud corrupts everything', a general principle of law (unwritten but recognised) which prevents the defrauder from benefiting from his fraud.

But the Court of Cassation (the highest judicial court) corrects this reasoning. It relies on Article 1240 of the Civil Code (formerly Article 1382), which provides that 'any act of man whatsoever, which causes damage to another, obliges the person by whose fault it occurred to repair it'. Fraud is a fault. The penalty must be proportionate and cannot go beyond what is necessary.

In this case, at the time the landlord committed the fraud (cutting off electricity, etc.), he was still the owner and the lease was ongoing. He therefore had the right to enjoy his property, but within the limits of the lease contract. The fraud infringed the tenant's right to peacefully occupy the premises. The penalty for this fraud cannot deprive the landlord of a right he did not yet have: the right to obtain termination of the lease and eviction, which only existed from the moment the judge declares the termination or the forfeiture clause is acquired.

Beware, however: this does not mean that the landlord can commit fraud without consequences. He will have to compensate the damage caused to the tenant (for example, the cost of temporary rehousing). But he does not lose his right to eviction for the future.

What few people know is that this decision is a confirmation of previous case law (Civ. 3e, 10 May 2000, No. 98-16.305). It shows that judges are committed to a measured application of fraud, to avoid disproportionate penalties. undefined, I have come across cases where landlords, exasperated by unpaid rent, committed acts of self-help. They were then deprived of their right to eviction, sometimes wrongly, because the fraud occurred after the acquisition of the right. This judgment clarifies the chronology.

What This Changes for You — Practically

For landlord owners: if you are faced with a tenant who no longer pays, do not give in to the temptation of self-help. Cutting off water, electricity, changing locks or cutting off heating are fraudulent acts that can cost you dearly. But rest assured: if you have already obtained an eviction order and you commit fraud to enforce it (for example, by forcing the door without the bailiff), you risk losing your right to eviction. On the other hand, if the fraud takes place before any judgment, you only lose your right to enjoy the property at that time, not the future right to obtain eviction.

Concrete example: in Anglet, Mrs D. is the owner of a flat let to a student who has not paid for three months. She cuts off the electricity. The tenant takes the matter to court. Mrs D. is ordered to pay damages (€500 for example) and to restore the electricity. But she can still obtain eviction if she initiates regular proceedings afterwards. If she had waited until she had a judgment to cut off the electricity, she would have lost the benefit of eviction.

For tenants: if your landlord commits fraud (power cut, change of locks), you can claim compensation for the damage suffered (rehousing, legal fees). But you may not necessarily be able to prevent a future eviction if the lease is regularly terminated.

For purchasers and co-owners: in case of neighbour dispute or disturbance of enjoyment, do not act unilaterally. Fraud can deprive you of future rights. For example, if you cut off access to a right of way (easement) to force a neighbour, you could lose the right to enforce the easement if you did not yet have that right at the time of the fraud.

If you are in this situation, you must act prudently. Never take coercive measures without an enforcement order. Consult a lawyer before any action.

Four Tips to Avoid This Type of Dispute

• Do not act without an enforcement order: before cutting off electricity or changing locks, wait until you have a final eviction order. Any unilateral action is fraud and can cost you dearly.
• Initiate legal proceedings as soon as the first arrears occur: as soon as the first rent is unpaid, send a formal notice by registered letter. If nothing changes, take the matter to court to obtain termination of the lease. The longer you wait, the more the debt accumulates and the greater the temptation of self-help.
• Use a bailiff: to record the state of the premises, serve documents and enforce decisions. Never take justice into your own hands. The bailiff is a ministerial officer who guarantees the legality of operations.
• Keep all evidence: keep rent receipts, registered letters, bailiff's reports. In case of dispute, these documents are essential to prove good faith and the regularity of your approach.
• Consult a lawyer lawyer: before any action, even if it seems legitimate to you, seek advice. A lawyer will prevent you from making mistakes that could cause you to lose your rights. Prior consultation is a worthwhile investment.

Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.

Further Insight: Related Case Law and Developments

This decision is part of a line of judgments that temper the application of the maxim 'fraud corrupts everything'. Thus, the Court of Cassation has held that fraud cannot be invoked to deprive a party of a right he did not yet have (Civ. 3e, 10 May 2000, No. 98-16.305). It has also specified that fraud must be proven by the person who invokes it (Civ. 1re, 14 May 1996, No. 94-10.565).

Conversely, some older decisions applied fraud more rigorously, depriving the defrauder of all rights, even future ones. The current trend is towards proportionality: the penalty must be adapted to the seriousness of the fraud and the damage caused. This means that judges examine the chronology of the facts on a case-by-case basis.

For the future, we can expect courts to continue to apply a nuanced approach. Landlords must therefore be vigilant: fraud committed at the wrong time can have very different consequences. In practice, it is always preferable to act within the legal framework.

Frequently Asked Questions

Can I cut off the electricity to my tenant if he does not pay? No, this is prohibited. It is a fraudulent act that can cost you damages. However, if you already have an eviction order, you must use a bailiff to enforce it.

What should I do if my landlord cuts off the heating in winter to make me leave? You can apply to the interim relief judge to have the heating restored and claim damages. Keep all evidence (photos, witness statements).

Can I lose my right to eviction if I committed fraud after the judgment? Yes, if the fraud occurs after the acquisition of the right to eviction, you risk being deprived of it. Example: you obtain an eviction order, but you force the door yourself instead of using a bailiff. You lose the benefit of eviction.

What is the time limit to act after a rent arrears? There is no legal time limit, but it is advisable to act quickly. Send a formal notice as soon as the first month's rent is unpaid. If nothing changes, initiate proceedings within 2 to 3 months. The longer you wait, the larger the debt and the more the situation deteriorates.

Can I be convicted for fraud if I cut off the water during works? If it is a temporary cut-off justified by emergency works, it is not fraud. But if it is to force the tenant to leave, it is fraudulent. Distinguish clearly between situations.

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