IStock / City Presse
In France, the right to property is a fundamental freedom recognized by the Constitution.
But it is far from being inviolable.
Recent news items have focused on a very delicate phenomenon legally speaking: the squat.
In August 2020, an octogenarian couple discovered that a family had taken possession of their holiday home in Théoule-sur-Mer (Alpes-Maritimes) for several weeks.
Similar scenario in September in Nièvre, where two squatters illegally occupied the home of a senior placed in a retirement home.
In these situations, the owners do not have the right to intervene themselves.
To be in the nails, it is therefore necessary to go through a legal procedure.
A tedious civil procedure
In terms of civil law, the illegal occupation of a squatter is no different from that of a tenant to whom you have given proper leave and who would nevertheless refuse to leave, as explained by Me Gabriel Dumenil, partner at YL Avocats in Paris and author for Lexis Nexis editions.
Therefore, it is necessary "to summon him to the local center of the judicial court (former district court) to ask the judge for his expulsion and the obtaining of an occupation allowance".
You will have to prove your right of ownership but also that the person in question occupies the premises without right or title, for example by having recourse to a bailiff.
Once the judgment is rendered in your favor, you will have to appeal to this ministerial officer again to issue a "command to leave the premises" to the uncooperative squatter.
And if he still does not leave, it will be necessary to appeal to the prefecture for the police to intervene.
Although the winter break does not apply to the squat, some jurisdictions are delaying the deadline due to various reasons.
An accelerated procedure
Rather than wasting long months in civil proceedings, the alternative is to file a complaint for home invasion.
The police would then intervene under the flagrante delicto to hunt unwanted people, as soon as you prove that they entered the premises by break-in for less than 48 hours.
In practice, however, squatters often target second or vacant homes.
The Élan law of 2018 therefore established an accelerated criminal procedure, recently reinforced by the Asap law of December 7, 2020.
"Once the owner has filed a complaint for home invasion, the police must go to the site to find the illegal occupation", exposes Me Dumenil.
This is defined as the intrusion or maintenance in a main or secondary residence, using "maneuvers, threats, assault or coercion".
You must then ask the prefect to give notice to the squatters to leave the accommodation.
He has 48 hours to make his decision.
In the event of a positive response, the prefecture grants intruders a minimum of 24 hours to leave, after which it must call in the police.
That said, the administration can refuse the request on the basis of an “overriding reason in the general interest”.
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A shifting criminal law
A shifting criminal law
The procedure resulting from the Asap law does not answer all the questions.
"How are the police going to characterize the offense without the help of a judge?"
», Asks Me Dumenil, anticipating a heavy litigation to come.
Likewise, the prefecture retains a wide margin of appreciation which does not necessarily guarantee the owner to recover his property.
Finally, this accelerated device does not apply to uninhabitable housing such as an independent garage, land or even a room having another use.
In these cases, it will be necessary to go through the civil procedure.
Several bills, currently in the pipeline of Parliament, aim to further toughen the legislation.
Some intend to strengthen the penalties for the offense of home invasion, while others suggest creating a new criminal offense of fraudulent occupation of property.
But Me Dumenil warns: such a project could pose "a real problem in terms of legality, definition and consistency between the criminal and civil regimes".