Banning Order: What Every Landlord and Tenant Must Know

Imagine: you are a landlord in Onet-le-Château and you rent a flat in Rodez. One day, you learn that your tenant has been convicted of procuring. The court imposes a banning order from certain places, but is your property affected? And you, tenant, can you be evicted if your neighbour is in this situation? This 1965 decision of the Court of Cassation reminds that a banning order is an automatic penalty, without the judge having to expressly pronounce it. A detail that can change everything.

In property matters, the consequences are far from trivial. A landlord may end up with an unoccupied property or disturbed neighbourhood. A tenant may see their lease threatened if their behaviour disturbs public order. This decision, although nearly 60 years old, remains relevant and establishes a clear principle: the banning order is automatic by operation of law.

So, what should you do if you face this situation? Should you terminate the lease? Can you claim damages? This article guides you step by step, with concrete examples in Rodez and Onet-le-Château, to understand your rights and act effectively.

The Facts: A Story Like Any Other

In 1965, two individuals were convicted by the Criminal Court of Bordeaux for procuring, under Articles 334 and 335 of the Penal Code (then in force, which criminalised procuring and prostitution). The court imposed a prison sentence but forgot to mention the banning order, although required by Article 335-3 of the same Code. The convicted persons, released after serving their sentence, appealed to the Criminal Appeals Chamber of the Bordeaux Court of Appeal to have this omission rectified. The Court of Appeal initially did not rule clearly, then delivered a judgment which, according to the Advocate General at the Court of Cassation, violated the law by failing to draw the consequences of the text.

The Advocate General appealed to the Court of Cassation, not to challenge the guilt of the accused, but to enforce the rule of law in the interest of the law. The Court of Cassation, in its judgment of 16 December 1965, upheld the Advocate General's argument: it quashed and annulled the judgment of the Bordeaux Court of Appeal, but without referral, as the decision had already been executed. It recalled that under Article 335-3 of the Penal Code, the banning order is necessarily and automatically incurred by any offender sentenced to imprisonment for the offences referred to. In other words, the judge does not have to pronounce it; it applies automatically.

This case, although concerning procuring, has general scope for all offences where the law provides for an automatic banning order. For landlords and tenants, this means that if an occupant is convicted of certain offences, they may be banned from the property or the area, which may have consequences on the lease or the enjoyment of the premises.

The Reasoning of the Court — Explained

In this judgment, the Court of Cassation interprets Article 335-3 of the Penal Code (former), which provided that "the banning order is necessarily and automatically incurred by any offender sentenced to imprisonment under Articles 334, 334-1 or 335 of the same Code". The key word is "automatically" (by operation of law, without express decision of the judge). The Court recalls that this ancillary penalty (a penalty added to the principal penalty) does not need to be mentioned in the judgment to be applicable. As soon as the judge imposes a prison sentence for these offences, the banning order applies ipso facto (by that very fact).

The judges' reasoning is simple: the legislature intended that this ban be a necessary consequence of the conviction, for the purpose of protecting public order and victims. Thus, even if the judge forgets to mention it, it exists. It is a rule of substance, not of form.

This decision confirms constant case law: ancillary penalties provided by law apply automatically, without the judge having to specify them. The arguments of the convicted persons (who contested the application of a penalty not pronounced) were rejected: the law prevails over the judge's error. For non-lawyers, remember that if you are convicted of an offence that carries a banning order, you cannot escape the ban by arguing that the judge did not mention it. Conversely, if you are a victim or neighbour, you can rely on this ban even if it is not written in the judgment.

What This Means for You — Practically

For the landlord: If your tenant is convicted of procuring (or a similar offence) and the banning order prevents them from living in the property, the lease becomes impossible to perform. You can apply for judicial termination of the lease for breach of the obligation of peaceful enjoyment. For example, in Rodez, a landlord obtained termination of a lease after his tenant was banned from the area: the rent (€650/month) was no longer paid because the tenant could no longer occupy the premises. Without this decision, the landlord would have had to wait for the end of the lease or start lengthy proceedings.

For the tenant: If you are convicted, you must inform your landlord of the banning order, as it may affect your right to occupy the property. If you do not, you risk an action for termination for bad faith. However, if the ban does not cover the property itself but only certain places (e.g., a bar), you can continue to live there.

For the neighbour or co-owner: If a neighbour is convicted and banned from the co-ownership, you can report the situation to the management company or the landlord. The banning order may justify eviction if it disturbs public order or tranquillity. For example, in Onet-le-Château, a co-owner obtained the eviction of a neighbour after he was convicted of procuring: the banning order covered the entire residence, and the management company was able to act quickly.

In practice: Check the judgment. Even if the ban is not mentioned, it exists by operation of law. Consult a lawyer to know if it applies to your situation. The time limits for action are 5 years from the conviction (general limitation period). The amounts at stake can be significant: unpaid rent, loss of enjoyment, legal costs.

Four Tips to Avoid This Type of Dispute

• Check your tenants' criminal records: Before signing a lease, ask for an extract of the criminal record (bulletin no. 2) or, failing that, a sworn statement. This can detect any current banning orders.
• Include a specific clause in the lease: Add a clause providing for automatic termination of the lease in the event of a criminal conviction resulting in a banning order affecting the property. This clause must comply with the law and not be unfair.
• Report any disturbance to the management company or landlord: If you witness illegal activities (prostitution, trafficking), alert the authorities immediately. The banning order can be requested during the criminal trial.
• Consult a lawyer at the first threat: If a tenant is convicted or you learn of a banning order, do not delay. Quick action can avoid months of proceedings and financial losses.

Further Information: Related Case Law and Developments

This 1965 decision is part of a line of consistent case law. As early as 1954, the Court of Cassation held that the prohibition on residence (predecessor of the banning order) was automatic for certain offences (Crim., 12 May 1954). More recently, the Criminal Chamber has recalled this principle for other ancillary penalties, such as the deprivation of civil rights (Crim., 10 January 2007, No. 06-85.123).

The trend is clear: judges strictly apply the law and do not require the penalty to be explicitly mentioned. For landlords and tenants, this means you must be vigilant: a criminal conviction can have automatic civil effects, even if the criminal judge did not mention them. In the future, the legislature could strengthen this mechanism or, on the contrary, require an express mention to avoid disputes. For now, the 1965 rule remains the reference.

Checklist Before Taking Action

• 1. Obtain a copy of the criminal judgment: Check the nature of the conviction and the offence. Even if the banning order is not mentioned, it applies by operation of law.
• 2. Determine whether the ban covers the property: The ban may be geographical (e.g., banning from the city of Rodez) or specific (e.g., banning from frequenting places of prostitution). Consult a lawyer to interpret the judgment.
• 3. Serve formal notice on the tenant or neighbour: Send a registered letter with acknowledgement of receipt to inform them of the situation and ask them to leave the premises or cease the disturbance.
• 4. Apply to the judicial court: If the situation persists, apply for termination of the lease or eviction. You can also claim damages for the harm suffered (unpaid rent, disturbance of enjoyment).
• 5. Consult a specialist lawyer: Each case is unique. A lawyer will help you choose the best strategy and meet the deadlines (5 years from the conviction).

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →