The Enforcement Judge Who Assesses the Penalty Payment

Reference decision: Cass. • No. 08-12.952 • 2009-04-29 • See the decision →

This decision provides important insight into your property law. Here is what it changes for you.

The situation

The enforcement judge who assesses the penalty payment does not have the power to evaluate the loss suffered due to the debtor's unreasonable resistance to the obligation subject to the penalty.

What the law says

This decision confirms the fundamental principles of property law.

Key points to remember

Strictly comply with the legal time limits for appeals
Keep all your supporting documents (deeds, instruments, correspondence)
Plan ahead: preventive advice always costs less than litigation

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📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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Practical use cases

Landlord Seeks Penalty and Compensation from Overstaying Tenant

A landlord in Lyon obtained a court order for a commercial tenant to vacate the premises by a deadline, with a €500 daily penalty payment for non-compliance. The tenant remained for 90 days beyond the deadline, causing the landlord to lose €30,000 in potential rental income from a new tenant.

Practical application:

The enforcement judge can only calculate the penalty at €500 x 90 days = €45,000. They cannot award the €30,000 income loss as they lack jurisdiction over damages. To recover this loss, the landlord must bring a separate claim before the judicial court, focusing on the tenant's fault in resisting the eviction order.

First-Time Buyer’s Repair Delays and Extra Living Costs

A first-time buyer in Montpellier discovered a major roof leak after purchase. The court ordered the seller to complete repairs within 60 days, subject to a €200 daily penalty. The seller delayed by 30 days, forcing the buyer to pay €1,500 for temporary accommodation.

Practical application:

When seeking payment of the penalty, the buyer can ask the enforcement judge to set it at €200 x 30 = €6,000. However, the judge cannot award the €1,500 accommodation cost as that constitutes separate damages. The buyer must file a distinct legal action for those losses, proving they resulted directly from the seller's unreasonable delay.

Co-Owner Faces Ongoing Loss from Unauthorised Terrace

In a Marseille condominium, a co-owner built an unauthorised terrace, obstructing a communal garden. The court ordered its removal within 45 days, with a €1,000 weekly penalty. After 10 weeks of non-compliance, the other residents suffered loss of use valued at €5,000.

Practical application:

The enforcement judge will liquidate the penalty at €1,000 per week for 10 weeks = €10,000. They cannot assess the €5,000 loss of enjoyment damages. The affected co-owners must initiate a separate claim before the competent court to recover compensation for the loss of use, citing the obstructive co-owner's resistance to the removal order.

The Enforcement Judge Who Assesses the Penalty Payment

The situation

What the law says

Key points to remember

Legal information

Source

Keywords

Practical use cases

Landlord Seeks Penalty and Compensation from Overstaying Tenant

First-Time Buyer’s Repair Delays and Extra Living Costs

Co-Owner Faces Ongoing Loss from Unauthorised Terrace

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Maître Zakine, Doctor of Law