Expulsion of an Occupier Without Right: The Decision That Reassures Landlords

Imagine: you own a plot of land in Dax, near the lake, which you plan to sell or develop. One day, you discover that people have settled there, set up a caravan, or even a small construction, without your permission. You ask them to leave, they refuse. What can you do? The police refer you to the judge. But will the judge really order eviction when these occupiers invoke their right to respect for their home? That is the question the Court of Cassation considered in a decision of 4 July 2019 (No. 18-17.119). And the answer is clear: yes, eviction can be ordered, even if it infringes on the occupiers' home, because this infringement is proportionate to the seriousness of the infringement of the right to property.

This decision is a breath of fresh air for landlords, particularly in high-pressure areas such as the Landes coastline or the outskirts of Mimizan, where occupations without title are multiplying. But it also reminds us of a few rules to follow to succeed. Let us analyse this case together and see what it changes for you.

The facts: a story like many that happen every day

In this case, owners (the P... family) owned a plot of land on which M. O..., Mme U... and M. X had settled without permission. The owners brought proceedings in summary proceedings (procédure d'urgence) before the tribunal de grande instance to stop what they described as a manifestly unlawful disturbance (an occupation without right or title). The judge in summary proceedings ordered eviction, and the court of appeal upheld that decision. The occupiers then appealed to the Court of Cassation, arguing that the eviction violated their right to respect for their home, guaranteed by Article 8 of the European Convention on Human Rights. According to them, the judge should have verified whether the eviction was not disproportionate, i.e., whether it caused excessive interference in their private and family life.

The Court of Cassation dismissed their appeal. It held that eviction was the only measure allowing the owners to recover full enjoyment of their right to property over their land, which was unlawfully occupied. The interference with the occupiers' home was therefore not disproportionate given the seriousness of the infringement of the right to property. In other words, when one occupies another's land without right, one cannot hide behind the protection of the home to prevent eviction.

The reasoning of the court — explained

The judges' reasoning rests on two pillars: the right to property (Article 544 of the Civil Code: the right to enjoy and dispose of things in the most absolute manner) and the right to respect for the home (Article 8 of the European Convention: everyone has the right to respect for his private and family life, his home and his correspondence). But these two rights are not absolute: they may be limited if necessary and proportionate.

In this case, the occupiers had installed their residence on land that did not belong to them. Their home was therefore unlawful. The Court of Cassation considered that eviction, although it infringed that home, was a necessary measure to protect the owners' right to property. This follows settled case law: occupation without right or title constitutes a manifestly unlawful disturbance which the judge in summary proceedings can stop immediately. What few people know is that the judge in summary proceedings does not have to seek a 'fair balance' on a case-by-case basis: as soon as the occupation is unlawful, eviction is the rule, except in exceptional circumstances (for example, a risk of serious violation of fundamental rights).

The argument raised by the occupiers — lack of proportionality — was dismissed. The Court recalled that the right to property is a fundamental right, and that occupying without title seriously infringes it. In short, the scales tip in favour of the owner.

What this changes for you — concretely

If you are the owner of a plot of land or a dwelling occupied without your consent, this decision confirms that you can act quickly in summary proceedings to obtain eviction, without having to demonstrate proportionality on a case-by-case basis. However, be careful: the judge will still verify that the occupation is indeed without right or title (no lease, no permission).

For a landlord: if your tenant stays after the end of the lease (without title), you can also apply for eviction in summary proceedings, but the procedure is more regulated (notably with the winter truce).

For a tenant: this decision does not directly concern you, but it reminds us that occupation without right exposes you to rapid eviction. If you are in a regular situation, you are protected.

Concrete example: in Mimizan, an owner of a building plot sees people settle in a shack without his consent. He can apply to the judge in summary proceedings of the tribunal judiciaire of Mont-de-Marsan. Within a few weeks, he will obtain an eviction order, enforceable with the assistance of the police if necessary. The procedural costs (lawyer, bailiff) may be charged to the occupiers. Generally, count between €1,500 and €3,000 for a lawyer in summary proceedings, but these sums are recoverable if the occupier is solvent.

If you are in this situation, you must act quickly: the longer the occupation lasts, the more the occupiers may argue for an established 'private life', even if unlawful. But this decision gives you a solid basis.

Four tips to avoid this type of dispute

• Have the occupation recorded by a bailiff as soon as possible. A bailiff's report will establish proof of the occupation without right and the start date. Without this proof, the judge might doubt the unlawful nature.
• Send a formal written notice (registered letter with acknowledgement of receipt) ordering the occupier to leave the premises. This demonstrates your willingness to resolve amicably and may facilitate a negotiated solution (for example, a deadline to leave).
• Do not cut off water or electricity to force them to leave. This is prohibited and could be held against you. Only a court decision can order eviction.
• Consult a lawyer specialising in property law before any action. A lawyer will know how to choose the appropriate procedure (summary or full trial) and avoid procedural pitfalls. undefined, I have come across cases where a simple procedural error delayed eviction by several months.

Further reading: related case law and developments

This decision is in line with the Court of Cassation's judgment of 8 February 2017 (No. 16-13.372), which had already held that eviction of an occupier without title is not disproportionate with regard to Article 8 of the European Convention. The trend is therefore consistent: French judges firmly protect the right to property against unlawful occupations.

However, the European Court of Human Rights (ECtHR) has sometimes adopted a more nuanced approach, considering that eviction must be proportionate to the circumstances (Winterstein v. France, 2013). But the Court of Cassation has managed to maintain its position by recalling that occupation without right is by nature unlawful, which makes eviction legitimate. For the future, we can expect courts to continue ordering eviction without requiring a detailed 'proportionality' test, except in very specific cases (elderly, sick persons, etc.).

Summary and next steps

• Q: Can I evict an occupier without title myself? No, eviction must be ordered by a judge and enforced by a bailiff, otherwise it is a violation of the home.
• Q: How long does summary proceedings take? Generally between 1 and 3 months, depending on the court. In Mont-de-Marsan, the delays are often reasonable (about 2 months for a hearing).
• Q: What if the occupier is a third party (sub-tenant, friend)? You must act against the title holder (the tenant) to terminate the lease, then against the occupier. But in summary proceedings, you can request the direct eviction of any occupier without title.
• Q: Is eviction possible during the winter truce? Yes, for squatters (occupation without right) because the truce does not apply to eviction decisions from an uninhabited place or unlawful occupation.
• Q: Can I obtain damages? Yes, you can claim an occupation indemnity (rent equivalent to the rental value) from the start of the occupation.

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