The legal concept of domicile modified by the ASAP law of 7 December 2020 in the case of squatted accommodation.
The law of 2020-1525, known as the ASAP law (Acceleration and Simplification of Public Action) came into force on 1 January 2021. It contains new provisions favourable to owners who are victims of squatters. Hence its name of anti-squatting law. These provisions refer to Article 38 of Law No. 2007-290 of 5 March, known as the Dalo Law (opposable right to housing).
It is on this article that aggrieved owners, deprived of their property by squatters, rely to try an administrative eviction procedure. Amended by article 73 of the ASAP law, it notably changes the notion of domicile in squatting cases. But not only that, and its contributions are significant (revised Article 38).
The contributions of the ASAP law
Broadening the concept of domicile
The concept of “another person’s home” is no longer limited to the principal residence as it was previously. It should now be understood as “the place where a person, whether living there or not, has the right to call his or her home, regardless of the legal title of his or her occupation and the use made of the premises”. This meaning is the one retained in the circular implementing the text, with reference to Article 226-4 of the Criminal Code (which, according to case law, refers more generally to the dwelling of others, regardless of whether it is permanent or temporary). The Court of Cassation considers that there is no need to make a distinction between a dwelling that is actually occupied at the time of the events and one that is temporarily empty of any inhabitant.
There is no longer any need to distinguish between a dwelling that is actually occupied at the time of the event and one that is temporarily empty.
The actual occupation of the dwelling/premises at the time the squatters enter it is no longer a necessary criterion for initiating the forced evacuation procedure. In other words, the introduction of squatters into a second home can also lead to an administrative evacuation.
This is good news for owners of second homes. The application circular specifies, however, that “even if the owner or tenant of the dwelling is temporarily absent at the time of the events, it is nevertheless important that the premises occupied contain the minimum elements, particularly furniture, necessary for habitation.
While this applies to occasional accommodation such as business pied-à-terre, it does not apply to vacant dwellings that are never inhabited by their owners, nor to business premises or land.
The prefect’s obligation to give a reasoned response
The original text of Article 38 did not specify a time limit or even an obligation for the administration to respond to a request for accelerated evacuation of a dwelling. The new text obliges the prefect (this is referred to as a linked jurisdiction) not only to respond to a request for administrative evacuation but also to respond within 48 hours.
The prefect is obliged to respond to your request within 48 hours
The obligation to respond and the reduction of deadlines, here again the new Article 38 constitutes two significant advances for owners, but not a guarantee of success. Indeed, the text provides for situations exempting the prefect from a favourable response. “In the event of refusal, the reasons for the decision shall, where appropriate, be communicated to the applicant without delay”, states the new version of Article 38.
Third parties can act on behalf of the owner
In its original wording, Article 38 of the Dalo law specifies that the request for administrative evacuation must be led by the owner or tenant of the illegally occupied dwelling: “In the event of introduction and maintenance in the home of others by means of manoeuvres, threats, assault or coercion, the owner or tenant of the occupied dwelling may ask the prefect to give the occupant formal notice to leave the premises (…)”. Only the owner of the squatted property or its tenant were entitled to launch a forced evacuation procedure. In other words, very restrictive conditions of referral. This is no longer the case.
You are not the owner, you can act on his behalf
Article 73 of the ASAP law broadens these conditions. In its new wording: “The person whose home is thus occupied or any person acting in the interest and on behalf of that person may ask the prefect to give the occupant formal notice to leave the premises (…)”. The procedure is no longer reserved for the owner or tenant; the usufructuary or the children of an elderly person placed outside their home, prevented from leaving for medical reasons or a long journey, for example, will be able to initiate the administrative procedure for forced evacuation.
Modification of Article 38 of the Dalo law
With article 73 of the ASAP law, article 38 of the Dalo law is amended to read as follows: “In the event of entering and remaining in another person’s home, whether or not it is their main residence, by means of manoeuvres, threats, assault or coercion, the person whose home is occupied in this way or any person acting in the interest of and on behalf of this person may ask the prefect to give the occupant formal notice to leave the premises, after lodging a complaint, proving that the dwelling is their home and having the unlawful occupation recorded by a judicial police officer.
Broadening the notion of domicile, requiring a reasoned response from the prefect, and opening up the right to act to third parties are the three main contributions of the rewriting of Article 38.
Details of the administrative procedure
The request consists of asking the prefect to give notice to the fraudulent occupant to leave the premises within a specified period. Subject to certain conditions being met, it authorises the prefect to proceed with the forced evacuation of persons who have entered and remained in your home – or in the home of the person for whom you are entitled to act – without prior recourse to the judge.
The 3 material elements of the request
- A complaint of home invasion;
- Proof that the home fraudulently occupied is the applicant’s home (invoices, certificates, tax documents);
- A judicial police officer (OPJ) must establish that the dwelling has been occupied in an illegal manner.
The first step to take, as soon as you have noticed that your property has been illegally occupied, is to lodge a complaint with the police station or gendarmerie for “home invasion”, an offence provided for in article 226-4 of the Criminal Code. Take all the documents (invoices, tax documents found on the internet, certificate provided by a neighbour for example) to prove that you are indeed the owner of the squatted home.
Where the application is made by a third party, the third party must establish the title to act in the interest and on behalf of the person whose home is occupied.
In flagrante delicto even after 48 hours
After you file a complaint, the police will go to your home and establish that you have been caught in the act of trespassing: breaking a window, breaking a door, changing a lock, etc., and remaining in the home. These facts must have been observed and must be included in the report of the complaint, otherwise the offence cannot be characterised as falling within the scope of article 38 of the Dalo law.
The offence of staying in another person’s home is an ongoing situation that law enforcement will be able to observe at any time.
The flagrante delicto of home invasion can be established as long as the occupants remain in the premises and not only within a 48-hour period. Indeed, ‘remaining’ in another person’s home is not an instantaneous act that can represent the fixed starting point of a time limit. The circular of 21 January 2021 specifies that the offence of staying in another person’s home is a continuous situation that the police can observe at any time. However, police officers may be reluctant to intervene after a certain period of occupation (the 48-hour period is often mentioned).
The identity of undesirable occupants must be collected when illegal occupation is established.
Start by asking your neighbours, the caretaker of the building… anyone who might know the identity of your squatters, look for names on your mailbox… If these simple solutions do not work, you can call in a bailiff (now called a judicial commissioner) who will go to the squatted premises to question the squatters and record their identity. This is known as an interpellative summons, which is the act whereby a bailiff directly summons a designated recipient (in this case the squatters) by asking them various questions, and collects their answers and observations.
Using a bailiff to identify squatters
The answers provided by your opponent will then be enforceable against him, particularly in court.
Tenant-squatters” outside the scope of Article 38
The following are not considered as squatters
- a tenant who remains in the dwelling after the end of the lease without the agreement of the landlord;
- a person who refuses to leave the premises after having been accommodated by the person living there.
Is your tenant refusing to leave the premises at the end of the lease?
You will not be able to initiate an administrative evacuation procedure in either of these two situations. Indeed, the two conditions for filing a complaint are not met. If the maintenance of your tenant without a lease is indeed an occupation without property or title, the offence of introduction into your property by way of deed or coercion cannot be retained.
In order to evict the offending tenant, you will need the services of a bailiff (or commissioner). Start by sending a formal notice to leave the premises via your bailiff. If this letter has no effect, you must apply to the court of law (formerly the court of first instance) in the commune where the rented accommodation is located.
A tenant who refuses to leave a property at the end of the lease is not considered a squatter
You will then need to instruct your court commissioner to serve your tenant with a summons to appear on the date set by the magistrate. You must attend the hearing if you are not represented by a lawyer.
The tenant has one month to appeal the judge’s decision.
At the end of the appeal period or at the end of the additional period granted by the judge, the decision becomes final. Your tenant will then receive a notice to vacate and will have two months to do so. In reality, this period may be extended, as it is not uncommon for the judge to grant your tenant a second period of time in which to resolve the situation.
If at the end of this period your tenant still refuses to leave the premises, the bailiff will request the intervention of the police. If the prefecture accepts the request, the police will proceed with the final eviction of the tenant.
The winter truce applies in the case of a “tenant-squatter”.
The winter truce applies in the case of a “tenant-squatter”.
Processing the application
The processing of applications must not exceed the mandatory time limit of 48 hours (Article 38(2) of the Civil Code).
When it appears, at the end of the investigation, that you can be granted a favourable outcome, and therefore at the latest at the end of the 48-hour period:
- a formal notice to leave the premises will be sent to the occupants;
- the evacuation must take place at the end of the notice period (24 hours);
If all goes well, the squatters will be evicted three days after the filing of your request. The formal notice is also published in the form of a notice in the town hall and on the premises. If the notice is not followed up, the eviction order may be enforced.
It may happen that the prefect rejects your request. He will have to notify his decision and give reasons for his refusal.
Rejection of the application: only two grounds
The law provides two grounds for the prefect to reject your application:
- the cumulative conditions referred to in Article 226-4 of the Criminal Code are not met (e.g. undetected break-in);
- the existence of an overriding reason of general interest.
The presence in the squatted property of minor children, pregnant women or elderly people with no alternative accommodation is a reason of general interest that prefects commonly take into account when rejecting a request.
Good to know: the winter truce (1 November to 31 March of the following year) does not apply to forced evictions ordered on the basis of article 38 of the Dalo law.
If your application for administrative eviction is unsuccessful, either because of lack of evidence or because the prefect has decided that there are ‘compelling reasons of public interest’, you will have to resort to the traditional legal route to recover your property. This second eviction procedure goes through the courts. You will need to hire a lawyer to take your case to court. The disadvantage of this procedure is that it is long and expensive.
Accelerated eviction procedure for squatters
Bailiffs can help you
Since 1 February 2022, you can be accompanied by a bailiff (commissaire de justice) at all stages of the administrative procedure to evict squatters.
This assistance includes :
- establishing the illegal occupation ;
- assistance in filing a complaint;
- drafting the request to the prefect and following up on the procedures with the prefecture.
If this is unsuccessful, it may be followed by support in legal proceedings.
The fees for the intervention of the mandated bailiff will be paid by the applicant. They will depend on the situation to be dealt with. Ask for a detailed estimate before committing yourself to a professional.