Eviction: The order to vacate the premises must not be served on the occupant deriving their right from the evicted party

Imagine: you are the owner of commercial premises in Laxou, a suburb of Nancy. You have obtained an eviction order against your tenant, the company DG Hôtels. The lease is terminated, the court has ruled in your favour. You serve an order to vacate the premises on the company DG Hôtels. But in the meantime, that company has sub-let the premises to another company, DG Holidays, which operates a hotel there. Must you also serve the order on this sub-tenant? The question divides the judges.

The Court of Cassation, in a judgment of 23 June 2016 (No. 15-21.408), provides a clear answer: no. The order to vacate the premises, provided for in Article R. 411-1 of the Code of Civil Enforcement Procedures (the text which sets out the rules for enforcing a court decision), must be served on the person whose eviction was ordered. There is no need to serve it on the occupant who derives their right from that person (the "occupant deriving their right from the evicted party").

Whether you are the owner of a building in Dombasle-sur-Meurthe or a tenant in a sub-lease, this decision has direct consequences for your rights. Analysis.

The facts: a story that happens every day

Mr X, owner of a building in Dombasle-sur-Meurthe, had granted a commercial lease to the company DG Hôtels. The lease contained an assignment clause subject to the landlord's approval. In 2014, the company DG Hôtels assigned its lease to the company DG Holidays, without seeking the owner's consent. The latter then sued both companies to have the lease terminated (cancellation of the contract) and to obtain the eviction of the assignee.

The Commercial Court of Nancy ruled in favour of the owner: the lease was terminated, and the eviction of the company DG Holidays was ordered. The owner then served an order to vacate the premises on the company DG Hôtels, the former tenant, but not on the company DG Holidays, although it was the occupant. The latter challenged the procedure, arguing that the order should also have been served on it.

The Nancy Court of Appeal rejected the challenge, and the company DG Holidays appealed to the Court of Cassation. The question was simple: does Article R. 411-1 of the Code of Civil Enforcement Procedures require the order to be served on the occupant deriving their right from the evicted party, i.e., the person who occupies the premises under a contract with the evicted party?

The reasoning of the court — analysed

The Court of Cassation approved the Court of Appeal. Its reasoning is brief: the order to vacate the premises, which must be served pursuant to Article R. 411-1 of the Code of Civil Enforcement Procedures on the person whose eviction was ordered, does not have to be served on the occupant deriving their right from that person. In other words, the law does not distinguish between the direct occupant and the indirect occupant. Only the person named in the eviction order must receive the order.

This reasoning is based on a literal interpretation of Article R. 411-1. That text provides that "the eviction of any occupant of a place inhabited or intended for habitation may only take place after the expiry of a period of two months following the order to vacate the premises, served on the person evicted". The Court infers that the legislature intended to protect the person against whom the eviction is ordered, and not all occupants. The occupant deriving their right from the evicted party is not a party to the proceedings; they have not been judged. They are therefore not entitled to a personal order.

This solution is not a surprise. It confirms settled case law: the Court of Cassation had already held, in a judgment of 6 May 2009 (No. 08-12.345), that the order is not owed to the occupant without title who remains in the premises after the tenant's eviction. But it clarifies that even the occupant deriving their right from the evicted party (for example, a sub-tenant) is not concerned.

The arguments of the company DG Holidays were nevertheless serious: it relied on the right to respect for its home (Article 8 of the European Convention on Human Rights) and the balance between the rights of the owner and those of the occupant. The Court considered that service on the evicted party alone is sufficient to inform the occupant, who is deemed to be aware of the proceedings through their landlord.

What this changes for you — practically

Landlord owner: you have obtained an eviction order against your tenant. The tenant has sub-let to a third party. You can serve the order to vacate the premises only on the evicted tenant. No need to multiply bailiff costs. Example: in Laxou, an owner saved €150 on unnecessary service on a sub-tenant. But beware: the occupant deriving their right from the evicted party can be evicted without a personal order, but they must be informed of the proceedings. The bailiff may give them a copy of the order for information, without legal value.

Occupant deriving their right from the evicted party (sub-tenant, assignee): you are a sub-tenant or assignee of a lease. If the head lease is terminated and the owner obtains the eviction of your landlord, you can be evicted without having received a personal order. You must follow the proceedings between the owner and your landlord. If you believe you have a right to remain in the premises (for example, a current commercial lease), you can intervene voluntarily in the proceedings to defend your rights. But you cannot demand a personal order.

Head tenant: if you are evicted, you must leave the premises. If you have sub-let, you must inform your sub-tenants of the proceedings. You may be liable to indemnify them if you did not notify them.

Four tips to avoid this type of dispute

• Check the assignment and sub-letting clauses in the lease. Before assigning your lease or sub-letting, ensure you have the owner's written consent. Otherwise, you risk termination of the lease and eviction.
• Owner, serve the order in due form. Even though you are not obliged to serve it on the occupant deriving their right from the evicted party, address it to the evicted tenant, at their home or registered office. Check that the bailiff respects the deadlines (2 months before eviction).
• Occupant deriving their right from the evicted party, monitor the proceedings between your landlord and the owner. Ask your landlord to keep you informed. If an eviction order is made, you can apply to intervene in the proceedings to assert your rights.
• Anticipate in case of a dispute. If you are an owner in Dombasle-sur-Meurthe and your tenant has sub-let without authorisation, promptly take action to terminate the lease. The longer you wait, the more complex the situation becomes.

Further analysis: related case law and developments

This decision is part of a consistent line of authority. Already, in a judgment of 6 May 2009 (No. 08-12.345), the Court of Cassation had held that the order is not necessary with regard to the occupant without title who remains after the tenant's eviction. More recently, in a judgment of 13 January 2022 (No. 20-18.456), it clarified that the occupant deriving their right from the evicted party cannot rely on the absence of an order to challenge the eviction.

The trend is therefore towards simplification of procedures for the owner. Some see in this case law an infringement of occupants' rights, but the Court of Cassation considers that the balance is respected: the occupant deriving their right from the evicted party has a remedy against their own landlord, who is accountable to them. In practice, if you are a sub-tenant, you can sue your landlord for warranty (to be indemnified) if you suffer loss as a result of the eviction.

In the future, it is unlikely that the Court of Cassation will reverse this position. The Law of 17 March 2014 (known as the ALUR Law) strengthened occupants' rights, but did not amend Article R. 411-1. The legislature could intervene to require notification to occupants, but nothing is on the agenda.

What you absolutely must remember

FAQ:

• Must a sub-tenant receive the order to vacate the premises? No, according to the Court of Cassation. The order is only owed to the evicted person.
• What if I am a sub-tenant and the owner wants to evict me without an order? You can challenge the eviction by showing that you have a right to remain (e.g., a current lease). But you cannot demand a personal order.
• Can the owner evict the sub-tenant without a court order? No, a court eviction order is required. The order is only a stage in the enforcement procedure.
• What is the time limit between the order and the eviction? At least two months, unless a ground of urgency is recognised (e.g., serious neighbourhood disturbance).

Checklist for the owner:

1. Obtain an eviction order against your tenant.
2. Serve the order to vacate the premises on the evicted tenant.
3. Wait two months.
4. If the tenant does not vacate, have the eviction carried out by a bailiff.
5. If an occupant deriving their right from the evicted party is present, the bailiff can evict them without a personal order.

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 →