Eviction: an irregular service can invalidate everything – what to do?

Imagine: you are the owner of a flat in Mérignac, near Bordeaux. After months of unpaid rent, you finally obtain an eviction order. The bailiff attends, the tenant leaves the premises. Relieved, you think the matter is closed. But a few weeks later, you learn that the entire procedure has been annulled for a procedural defect. How is this possible?

This situation, I have seen it recur in my practice. The judgment of the Court of Cassation of 10 January 2013 (n° 11-23.151) answers a specific question: can a bailiff serve the eviction report (procès-verbal d'expulsion) at the tenant's old address without having made genuine efforts to find his new address? The answer is no, and this failure can invalidate the entire eviction.

Whether you are a landlord, tenant or property professional, this decision has immediate practical consequences. Let us analyse it together.

The facts: a story like many others

Mr and Mrs Y. are landlord owners in Libourne. Their tenant, Mrs X., accumulates unpaid rent. After a standard procedure, the court orders her eviction. On 2 June 2009, a bailiff attends the home to carry out the eviction. That day, Mrs X. leaves the premises. The bailiff draws up an eviction report (official document recording that the eviction took place).

But then, he must serve (formally deliver) this report to Mrs X. At what address? The bailiff chooses to serve it at the address of the evicted flat, using the procedure under Article 659 of the Code of Civil Procedure (the so-called 'service by report of unsuccessful searches' procedure, when the addressee cannot be found). The bailiff deposits the document at the town hall and sends an ordinary letter to that address, without trying to find out where Mrs X. now lived.

Mrs X. brings legal proceedings to have the eviction and the report annulled, arguing that the service was irregular. The Tribunal de grande instance of Libourne dismisses her claim. The Bordeaux Court of Appeal confirms in 2011. Mrs X. appeals to the Court of Cassation. The Court of Cassation quashes (annuls) the appeal judgment, finding that the bailiff had not made sufficient efforts to find Mrs X.'s new address.

The reasoning of the court — dissected

The dispute concerns the interpretation of Article 659 of the Code of Civil Procedure. This provision allows the bailiff to serve a document at the last known address when the addressee cannot be found, provided that real and serious searches have been carried out. In other words, the bailiff must prove that he did everything to find the person.

In this case, the bailiff merely attended the address of the evicted flat on the day of the eviction. He did not question the neighbours, did not consult registers, did not check whether Mrs X. had left a redirection address with La Poste. Yet, he should have at least asked Mrs X. for her new address at the time of the eviction, and if she did not provide it, searched by other means. The Court of Cassation reminds that the bailiff cannot hide behind the fact that the tenant did not give his new address: it is up to the bailiff to actively search for it.

However, be careful: the Court does not create an absolute obligation to find the address. It requires proof of concrete steps. In this case, the bailiff provided no evidence of any diligence, hence the nullity. What few people know is that this requirement also applies to other documents (order to vacate, summons, etc.).

The judges of the Court of Cassation thus gave precedence to the right to a fair trial (Article 6 of the European Convention on Human Rights): a person must be able to challenge a measure that evicts him from his home. If the bailiff does not make an effort to reach him, he is deprived of that right.

What this changes for you — practically

For the landlord: This decision requires you to verify that the bailiff has indeed carried out the necessary diligence. Demand a detailed report of the searches carried out. For example, if your tenant has left the property in Mérignac, the bailiff must prove that he searched for his address through postal services, the town hall, or via neighbours. If not, the eviction can be annulled, and you will have to start the whole procedure again, which can take 6 to 12 additional months and cost €2,000 to €5,000 in lawyer and bailiff fees.

For the tenant: If you are evicted and the bailiff did not serve the report at your new address, you can apply for the eviction to be annulled. But be careful: you must act quickly, within two months from the service (or from when you became aware of the document). If you are acting in good faith, you may obtain damages for the loss suffered (e.g., €1,500 to €3,000 for disturbance of enjoyment).

For the purchaser: If you buy an occupied property, ensure that any previous eviction procedure was carried out regularly. A procedural defect could allow the former tenant to revive his rights, or even seek annulment of the sale.

undefined, I have come across cases where an owner, believing the matter was closed, found himself facing a liability action against his bailiff. A concrete example: a landlord in Bordeaux entrusted the eviction to a bailiff who had not carried out searches. The tenant, who had gone to live with her mother in Mérignac, never received the report. Two years later, she was able to have the eviction annulled and obtained €5,000 in damages. The owner had to pay for a new procedure.

Four tips to avoid this type of dispute

• Demand a diligence report from the bailiff: Before validating the service, ask the bailiff for a written document listing the steps taken (visit to the old address, questioning neighbours, consulting postal files, searching social media, etc.). If the report is empty, refuse and require additional searches.
• Keep a record of the redirection address: At the time of eviction, have the tenant sign a sworn declaration of his new address. If he refuses, mention it in the report. This will avoid any later challenge.
• Use a lawyer lawyer: The eviction procedure is technical. A lawyer will check the regularity of each document. The cost (around €1,500 for an eviction) is modest compared to the risk of nullity.
• Check limitation periods: If you are a tenant, do not wait to challenge. The time limit to apply for nullity is two months after service. After that, the eviction becomes final.

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Further reading: related case law and developments

This decision is part of a trend protecting tenants' rights. The Court of Cassation had already held, in a judgment of 12 September 2007 (n° 06-18.170), that the bailiff must search for the new address even if the tenant had left without leaving an address. More recently, in 2019, the Court specified that the bailiff could use social networks to locate the person (Civ. 2e, 21 March 2019, n° 18-10.669).

On the other hand, some courts of appeal (such as that of Paris) had a more lenient interpretation, considering that the absence of search did not automatically result in nullity if the tenant had become aware of the document by other means. The 2013 decision ends these divergences: nullity is incurred as soon as the bailiff has not carried out any diligence.

In the future, we can expect judges to require increasingly thorough searches, particularly through digital tools. Bailiffs will therefore have to adapt their practices. For owners, this means being patient and accepting additional delays so that searches are exhaustive.

Key points to remember

1. The bailiff must search for your new address before serving the eviction report. If he does not, the eviction can be annulled.
2. If you are an evicted tenant, challenge within two months. Gather evidence that the bailiff did not carry out searches (no registered letter, no visit to your new address, etc.).
3. If you are an owner, demand a written diligence report from the bailiff. Do not pay fees until this report is provided and complete.
4. If in doubt, consult a lawyer. The cost of a consultation is negligible compared to the risk of having to start all over again.
5. This case law also applies to other documents in the eviction procedure. Order to vacate, summons, etc. All must be served with serious searches.

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