The ELAN law n° 2018-1021 of November 23, 2018for the Evolution of Housing, Development and Digital known as ELAN has the stated objective of "Improve the relationship between landlords and tenants" institutes a number of rules that LEGALCITY, in this article wishes to bring to your attention.
The relationship between Landlords and tenants is not always a smooth one and often leads to conflicts or disputes that only the Law can settle.
Because a lease resolution procedure remains complicated and requires the intervention of professionals, LEGALCITY has set up a 3-step procedure to accompany you until your tenant is evicted.
The eviction procedure remains a real obstacle course and must also respect certain rules in order to be able to recover your debts but also while preserving the rights of your tenant, to find the enjoyment of your property.
The first step is to obtain a payment order for the resolutory clause
When your tenant does not pay or leaves doubts as to the regularity of his rent payments, you must quickly think about issuing a payment order to the latter, which will be based on the resolutory clause included in the articles of the rental agreement.
By entrusting your case to LEGALCITY, the lawyers will analyze your case and direct you to the bailiffs who are partners of the firm so that you can follow the first step of the procedure directly from your client space, but also accompany you in the recovery of the rent by contacting your tenant. It should be noted that the termination clause which is referred to will only produce effects within two months after the commandment which would have remained unsuccessful. For a rental of furnished premises the period is reduced by one month.
In case of non-payment during this period, the resolutory clause is activated and the tenant has no more right of occupation on the rented property.
Our legal experts will work with our partner bailiffs to ensure that the summons is drawn up in accordance with a certain number of formalities necessary to avoid a procedural error. article 24 of the law of July 6, 1989.
Thus, the first step of the procedure carried out by LEGALCITY's lawyers, in addition to the payment order, is accompanied by information from the CCAPEX: Commission for the Coordination of Actions and Prevention of Rental Evictions. The lessor must thus "The landlord must thus "report in the regulatory conditions to the paying bodies of the housing subsidies"
The summons in summary proceedings as a 2th stage of the procedure:
LEGALCITY's lawyers accompany and draft the summons of the defaulting tenant to the protection litigation judge (formerly the court of first instance) of the place where the lease is located in order to establish the effectiveness of the resolutory clause and to request the provisional condemnation of the tenant to the payment of the rent.
Our lawyers will systematically contact the bailiff partner of the firm to ensure the service of the summons, which can only be carried out within a period of two months until the date of the hearing that they will have fixed with the Clerks of the Courts.
The delay between the first act and this act until the hearing leaves a period of 4 months that the Collection Office will use to try to find an amicable solution to the debt and/or negotiate a payment schedule, a departure of the tenant, etc...
Explanation of the procedure before the judge of protection litigation
Since the 1stst Since January 1, 2020, the courts of first instance have been abolished and replaced by the judge of the protection disputes depending on the new Judicial Court set up by the legislator.
The Firm requests and records the date of the hearing with the clerk of the court, and communicates it to the partner bailiff who must deal with the congestion of the Courts' schedule. The hearing date is not certain and can vary greatly depending on the Court.
Unfortunately it is quite rare that the Judges take a decision at the first hearing because of the requests for postponements that the tenants can request to organize their defense either personally or with the help of a lawyer.
In order to give weight to the procedure and to invite the Judges not to accept too easily the requests for postponement, it can be envisaged to go through a Mediation procedure before the hearing, in particular through the JUSTICITY Platform (www.justicity.com)
Indeed, after having initiated the procedure and having obtained a hearing date, you could try to ask for a mediation which would be led by a professional and independent mediator in order to find an agreement with your tenant.
The request is made online on the site www.justicity.com and in case of acceptance of your tenant you will be able to find an agreement with the help of a mediator, agreement which can be simply approved by the Judges without passing in instance.
If your tenant refuses the principle of Mediation, the JUSTICITY platform will give you a certificate of attempt and refusal of Mediation indicating that you have tried an amicable approach in parallel with the legal procedure. This certificate, if you produce it at the hearing before the judge of the Judicial Court, will be very useful and will certainly allow the judge to understand the attitude of your tenant if he tries to use or abuse his right to defer even though you have given him the opportunity, before a mediator, to make his remarks concerning the procedure.
Finally, in certain cases, the judge has the possibility, if he considers that your debtor has the means to settle his rental debt, to grant him up to three years of payment delays and to suspend the effects of the resolutory clause that you had previously acquired.
Finally, it is important to note that the Judge will systematically take 1 to 2 months to render his decision after the hearing.
Once the eviction order has been obtained and rendered by the Judge, LEGALCITY's lawyers will suggest that you go to the 3th stage so that the latter can be served by the partner bailiff in charge of the case.
How the eviction order is executed
The order will be for unpaid rent arrears as well as for the eviction of the tenant. This order must be delivered to the tenant within two months of the decision through a bailiff.
LEGALCITY's lawyers will help you to ensure that the service is made in the right form, including the registered letter to the Prefecture, which is valid for notification of its services.
Here also a new time limit of 2 months is introduced by Article L 412-1 of the Code of civil enforcement procedures
This time limit allows the evicted person to organize the conditions of his rehousing and moving. Failure to respect this deadline may result in the nullity of the entire procedure.
A grace period can also be granted in order to give the tenant more time to leave the premises and this request can be made to the Judge of execution of the Judicial Court.
Finally, Article L 412-3 of the Code of Civil Enforcement Proceduresalso allows the judge to grant a renewable delay to tenants for whom the eviction has already been judicially notified and ordered. The renewal is granted each time that the rehousing of the tenants cannot take place under normal conditions and, it is to be underlined, without them having to justify a title at the origin of the tenancy.
The renewal of these periods cannot be less than 3 months and cannot be more than 3 years. The duration of these deadlines cannot, in any case, be less than three months or more than three years. For the determination of these deadlines, account is taken of the good or bad will shown by the occupant in the execution of his obligations, of the respective situations of the owner and the occupant, in particular with regard to age, state of health, status as a war casualty, the family or financial situation of each of them, atmospheric circumstances, as well as the diligence that the occupant justifies having made with a view to rehousing.
If the tenants are judged to be in good faith, time limits are regularly granted to people in good faith. In fact, the first delay can only be reduced or cancelled if there is evidence of assault and battery, particularly in the case of squatters.
The delays granted are combined and cumulated with the winter truce instituted by article L 613-3 of the construction and housing code. (From 1er November to March 31 of the following year) which prevents any eviction during this period.
During these incompressible delays, it is not uncommon for the occupant, who has become without right or title, and who has nothing left to lose, not to proceed with any payment, while remaining in the premises.
The lessor must therefore be very patient, and he has not reached the end of his difficulties.
How is the assistance of the public force exercised in case of eviction?
While the entire procedure has been properly investigated, tenants may remain and stay in the premises when the eviction order is not enforced.
Thus, when public order is not at stake, the State must assist the lessor in the eviction of the tenant.
In accordance with article L 153-1 of the Code des Procédures Civiles d'Exécution the State is obliged to assist in the eviction and if it fails to do so, the lessor may claim compensation for the damage he has suffered as a result of the failure to act.
It cannot be repeated often enough, the fact of forcing by a means which would not make intervene the public force is punishable by an imprisonment of 3 years and a fine of 30 000 Euros.
In conclusion, when you are a landlord and you wish to recover your property by benefiting from a court decision allowing the eviction of your tenant, you will have to be patient and above all be accompanied by a professional. As we have seen, the procedure involves incompressible delays but also random delays depending on the situation and the judges' decisions, as well as the assistance of the public force.
The proposal of management of unpaid rents proposed by LEGALCITY assures you of the perfect respect of the texts of Law aiming at obtaining the departure of your tenant and the payment of the arrears of rent.
It also ensures a follow-up of the deadlines and a perfect information of the procedure by gathering in only one place the documents of this last in order to allow you to follow its progress.
Throughout the process, LEGALCITY's lawyers will try to find solutions that will allow you to quickly recover your property and your unpaid rent.
Whether you wish to be accompanied step by step or whether you subscribe to a "complete package", you have the assurance of a personalized follow-up in connection with our partner bailiffs.
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LEGALCITY is an amicable and judicial collection agency that strives to find amicable solutions and agreements in order to reduce the time of the procedures to a minimum.
Lawyers are all familiar with enforcement procedures when a judicial turn is contemplated.
At the same time, within the framework of an eviction procedure and before the hearing, you will be systematically proposed to try out the Alternative Dispute Resolution Methods through the platform www.justicity.com.
This platform will allow you to easily request in 3 steps and 100% online a Mediation procedure and the intervention of a professional and independent Mediator.