Property Seizure: Is it possible to sell your property despite the procedure?

Imagine you own a villa in Valbonne, in the Sophia Antipolis park. You have some financial difficulties, and a creditor has just served you with a command to pay (an official formal notice to settle a debt). A few weeks later, you find a serious buyer for your property and sign a promise to sell. But here's the catch: the property seizure procedure (a judicial procedure allowing a creditor to have a property sold to be paid) is underway. Can you really sell? Is your promise valid?

This is exactly the question the Court of Cassation (the highest judicial court in France) answered in its judgment of 7 December 2017. A decision that clarifies a point of law often misunderstood, and which has very concrete consequences for any property owner, whether in Mougins, Valbonne or elsewhere in France.

In short, this decision draws a line between two key moments in property seizure: the command to pay and the unavailability of the property (a measure that prevents the owner from selling or mortgaging it freely). But what exactly does this change for you, as a property owner, tenant or real estate professional? This is what we will break down together.

The facts: a story that happens every day

The story begins with the company Hacienda, a civil real estate company (SCI, a company often used to hold real estate assets) that owned a property. This company had debts. One of its creditors, Mr Y, initiated a property seizure procedure to get paid. On 18 November 2012, a command to pay constituting property seizure (a bailiff's act that officially launches the procedure and puts the debtor on notice) was served on the company Hacienda.

Yet, after this date, the company Hacienda found a buyer and granted a promise to sell (a contract by which it undertook to sell the property to this buyer). But faced with the company's refusal to sign the authentic deed of sale (the final deed before a notary), the buyer went to court. The company Hacienda defended itself by invoking the unavailability of the property, claiming that the promise to sell was void because it was signed after the start of the seizure procedure.

The case made its way through the courts. The lower court judges (the courts that examine the facts) ruled in favour of the buyer, considering that the promise was valid. The company Hacienda then lodged an appeal on a point of law (an appeal to the Court of Cassation to challenge the application of the law). This is where the magistrates of the highest court ruled.

The court's reasoning — broken down

The Court of Cassation dismissed the appeal by the company Hacienda. Its reasoning is based on a precise reading of the Civil Enforcement Procedures Code (the code governing seizures). It cites Article L. 321-5 of this code, which provides that a debtor who has granted a promise to sell after the service of a command to pay constituting property seizure is not entitled to rely on the effects of the unavailability of the property provided for in Article L. 321-2.

In other words, the judges distinguish two stages: the command to pay (which launches the procedure) and unavailability (which occurs later, generally after a court order). Article L. 321-2 provides that the property becomes unavailable from the publication in the land registry of an act recording this measure. But Article L. 321-5 adds an exception: if the debtor signs a promise to sell after the command to pay, they cannot subsequently invoke unavailability to withdraw.

The Court thus confirms consistent case law: the command to pay does not automatically render the property unavailable. Unavailability requires an additional formality (publication). Between the command and this publication, the owner can still commit their property, notably through a promise to sell. The company Hacienda argued that the mere existence of a seizure procedure rendered the promise void. The magistrates rejected this argument, emphasising that only Article L. 321-2, with its precise conditions, creates unavailability.

What few people know is that this decision is not a reversal (a change in case law), but a confirmation. It reminds us that the law protects both creditors (by allowing seizure) and debtors (by leaving them a window to sell before definitive unavailability). How should you react if you find yourself in this situation?

What this changes for you — concretely

If you are a landlord (a property owner who rents out their property) and you receive a command to pay, this decision offers you a breath of fresh air. You can still sell your property, provided you act quickly. For example, if you have a flat in Mougins worth €500,000 and you sign a promise to sell after the command, this promise is valid. You will not be able to withdraw later by invoking the seizure, unless unavailability was published before the signature.

For the tenant, the impact is indirect. If your landlord sells the property despite an ongoing seizure, your lease (tenancy agreement) remains valid. The buyer becomes your new landlord, and you retain your rights. But be careful: a sale during seizure can create uncertainties about the management of the property.

For the buyer, this decision provides security. If you sign a promise on a property subject to a command to pay, know that this promise is enforceable against the owner. They will not be able to refuse to sign the final deed on the grounds of the seizure, unless unavailability has been properly published. undefined, I have come across cases where buyers were able to force the sale thanks to this rule, avoiding months of procedure.

For the co-owner, the logic is the same. If your co-ownership lot (your flat or premises) is affected by a seizure, you can sell it after a command, subject to the rules of the co-ownership (such as any right of pre-emption). Timing is crucial: between the command and the publication of unavailability, several weeks or even months may elapse. This is your window of opportunity.

Four tips to avoid this type of dispute

• Check the legal status of the property before any promise: Request a certificate of non-registration from the land registry to verify the absence of published unavailability. This is a simple step with a notary or chartered surveyor.
• Act quickly after a command to pay: If you are a property owner and receive a command, consult a specialised solicitor immediately to assess your sale options before unavailability is published.
• Include a specific clause in the promise to sell: For the buyer, have a clause added specifying that the seller guarantees the absence of published unavailability on the date of signature, with penalties in case of breach.
• Monitor publication deadlines: Unavailability takes effect upon its publication in the land registry. Remain vigilant on this point, as late publication can invalidate your steps.

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In-depth analysis: related case law and developments

This decision fits into a stable line of case law. For example, a Court of Cassation judgment of 10 July 2013 (No. 12-20.042) had already emphasised that the command to pay does not render the property unavailable. An older decision, of 6 March 2002 (No. 00-10.372), went in the same direction.

The trend in the courts is clear: they interpret the conditions for unavailability strictly, requiring publication in the land registry for it to take effect. This protects transaction security, by preventing owners from using the threat of seizure to withdraw abusively.

For the future, this case law should remain. It balances interests: creditors can initiate seizure, but debtors retain a limited capacity to sell their property and settle their debts. An evolution to watch would be possible legislative adjustments to shorten the delays between command and publication, but for now, the law remains unchanged.

In practice: what to do

Here is a numbered checklist to guide you:

1. If you receive a command to pay: Consult a solicitor within 48 hours to assess a potential sale project.
2. If you want to buy a property: Demand a recent certificate of non-registration and verify the absence of a command to pay notified to the seller.
3. If you have signed a promise after a command: Know that it is valid, and you can demand its execution, unless unavailability was published before the signature.
4. If unavailability is published: The sale becomes impossible without the agreement of the seizing creditor or a court authorisation.
5. In case of dispute: Gather all documents (command, promise, certificates) and instruct a solicitor for an action for specific performance or termination.

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