The term “secondary residence” should be understood to mean all built immovable property (apartments, houses, commercial, business or industrial premises, etc.) that does not constitute the primary residence, i.e. the home of the owner subject to squatting.
When a secondary residence is squatted-in, the police services may be authorised to conduct a forcible eviction, only within the 48-hour period, to be counted from the effecting of entry by the squatters into the premises.
in the course of commission of offence
The 48-hour period (to be counted from the effecting of entry by the squatters into the premises), which arises from the practice in judicial police matters, permits police officers to act “in the course of commission of offence”.
The offence of “home invasion” provided in Article 226-4 of the French Penal Code, only concerns the “home” strictly speaking and does not extend in any way to other immovable properties.
By contrast, Article 322-1 of the French Penal Code which penalises the offence of vandalism mentions “the destruction, defacement or deterioration of a property belonging to another”, which does not distinguish between the primary residence and the secondary residence of the victim.
Therefore it is only in instances of vandalism offences duly established by the police services on the complaint of the victim that the police are authorised to act “in the course of commission of offence” in the period of 48 hours.
If the commission of the offence has not been established or, further, if the period of 48 hours has expired, the owner would be required to initiate a legal proceeding.
To enter into an eviction procedure, the owner must, on the one hand, show that his property is occupied, and on the other, obtain the exact identity of at least one occupant without right or title present on the premises.
The collection of the occupant’s identity often proves to be very difficult and necessitates a summons for questioning through the court bailiff. In the course of this, the bailiff does not have the right to enter the place because a location, even if squatted-in, constitutes the private home of the occupant without right or title. In the absence of authorisation by the court of ordinary jurisdiction, this will amount to the criminal offence of home invasion by breaking and entering.
On the basis of the evidence taken as a whole, the lawyers will approach the Regional Court of the jurisdiction of the squatted premises with an application for eviction through a summons delivered by the bailiff to occupants.
If the squatter is present at the hearing, it is highly probably that he/she will adopt one of the following positions: either attempt to prove a “presumed” lease (this is what is commonly known as lease fraud); or solicit an extension of the eviction period.
If all goes well, the court will order the eviction of the occupants with the assistance of a locksmith and law enforcement if required, and also sentence them to the payment of an indemnity for occupation on a monthly basis.
The notice to quit the premises will grant the occupants a period of 2 months to clear the premises of all furniture and settlements. If the premises are still occupied on the effective date of the notice to quit the premises, the Court bailiff will request the department’s administrative headquarters for the assistance of law enforcement.
Winter ban on tenant eviction
The ELAN law of 24 November 2018 differentiates the scheme of application of the winter ban on tenant eviction depending on whether the squatting relates to the primary residence of the victim or one of his/her secondary residences in the broad sense of the term.
Therefore, when the squatted-in premises constitute the primary residence of the owner or the tenant who is the victim, squatters do not benefit from the winter period. Otherwise, they avail of it by default but the judge may “cancel or reduce” this period.
Not always strict law enforcement!
Although there are rather clear and precise legal provisions for cases of squatted primary and secondary residences, it has to be acknowledged that the law is not always applied to the letter, even in cases where the entry into the dwelling has been made by breaking and entering. In fact, several criteria are first taken into account before a radical decision is taken to evict the illegal occupants from the property.
Among other things, the police commissioners take into account the profile of the squatters in question. The eviction will be immediate if the intruders are people who seek, for example, to hide from the police. On the other hand, eviction is much more difficult when the occupants of the squatted primary or secondary residence are a couple with children, especially young children.
However, the profile of the squatters is not the only factor that can influence or delay sentencing. Enforcement also takes into account the weather. For some police commissioners, it is hardly conceivable to put people outside in winter. As a reminder, due to the winter truce, the police are not allowed to evict illegal occupants of a squatted primary or secondary residence between 1 November and 31 March.
Adjustments to the Housing Act in favour of homeowners
Two amendments have been introduced in the Housing Act that are in favour of the owners of squatted primary and secondary residences. One of them provides for the abolition of the legal two-month time limit for illegal occupants to find a new home, in accordance with Article L 412-1 of the Code of Civil Enforcement Procedures.
The second amendment states that illegal occupiers are no longer protected by the winter truce, which prevented the police from evicting them between 1 November and 31 March. This is a relief for owners of illegally occupied primary residences and squatted secondary residences!