Forced sale of property: the enforcing creditor's timetable, step by step

A creditor who starts forced sale proceedings over real property (saisie immobilière) almost never loses its case on the merits. It loses on a time limit: a payment order published outside the two months, a summons served late, a statement of conditions of sale filed after the regulatory period has expired. Lapse (caducité) is recorded, not negotiated, and it requires the forced sale procedure to be started again from the beginning, with the corresponding costs and a debtor who is now on notice. This guide sets out the complete chronology, from the commandement de payer valant saisie (payment order operating as a seizure) to the distribution of the price, identifying for each step the time limit attached, the sanction incurred and the decision the enforcing creditor must make at that precise moment.

Overview: the outline of the forced sale procedure

Before going into detail, here is the outline of the forced sale procedure read as a decision calendar. Each line corresponds to a step, a time limit and a sanction.

• Payment order operating as a seizure, served by a commissaire de justice (bailiff). Eight-day period for payment by the debtor.
• Publication of the payment order at the land registry (service de la publicité foncière): two months from service, on pain of lapse (Article R. 321-6 of the French Code of Civil Enforcement Procedure).
• Descriptive report on the property, drawn up after the eight-day period has expired.
• Summons of the debtor to the orientation hearing (audience d'orientation): two months from publication of the payment order, on pain of lapse (Article R. 322-4).
• Filing of the statement of conditions of sale at the registry of the enforcement judge (juge de l'exécution): five working days following the summons, on pain of lapse (Article R. 322-10).
• Notification of the payment order and of the summons to the registered creditors, operating as a demand to declare their claim within two months, on pain of loss of rank (Articles R. 322-6 and R. 322-7).
• Orientation hearing, set between one and three months after the summons. Purge of challenges (Article R. 311-5). Referral to a sale by agreement or a forced sale.
• Sale by agreement authorised: case called back within a maximum of four months, extendable by three months at most (Article R. 322-21).
• Forced sale: adjudication hearing set between two and four months after the orientation hearing (Article R. 322-26).
• Higher bid of one tenth (surenchère du dixième): ten days following adjudication (Article R. 322-50).
• Payment or deposit of the price by the purchaser: two months, failing which re-auction (réitération des enchères) (Articles L. 322-12 and R. 322-56).
• Distribution of the price: draft distribution drawn up by the enforcing creditor, notification to the creditors, challenges, then approval or judicial distribution (Articles R. 331-1 et seq.).
• Expiry of the payment order: two years from its publication, unless extended by the court (Article R. 321-20).

This timetable is binding both ways. It is short when the creditor has control of its file, since ten to twelve months frequently separate the payment order from adjudication. It becomes open-ended as soon as a challenge, collective proceedings or an over-indebtedness measure is grafted onto it.

Before the payment order: the phase in which the file is won

The classic mistake of the institutional creditor is to treat the payment order as the starting point of the legal work. It is the opposite: the payment order crystallises a file that must be complete before it is served, because the orientation hearing will no longer allow it to be corrected.

Three checks condition the admissibility of the enforcement. First the title: Article L. 311-2 of the French Code of Civil Enforcement Procedure requires an enforceable title (titre exécutoire) recording a liquidated and due debt. A notarial loan deed is an enforceable title, but the debt being due presupposes that acceleration of the term has been regularly acquired, that is to say in accordance with the contractual provisions, including prior formal notice. Next the debt: its statement must be broken down between principal, interest, termination indemnity and ancillary sums, each item being tied to a clause. Finally the asset: updated mortgage register, rank of the registration, existence of a lease and its publication, occupation status, co-ownership regime, service charge arrears, exposure to energy requirements likely to affect the usability of the property and therefore its adjudication value.

At this stage, the creditor must also look into the debtor's situation. Open collective proceedings entail a prohibition or stay of individual actions under Article L. 622-21 of the French Commercial Code. A decision declaring an over-indebtedness application admissible has a comparable suspensive effect under the provisions of the French Consumer Code. Starting forced sale proceedings without having checked these two points amounts to financing a procedure destined to be suspended.

The payment order operating as a seizure: the step that opens the timetable

The payment order operating as a seizure is served on the debtor by a commissaire de justice. It contains, on pain of nullity, the particulars listed in Article R. 321-3 of the French Code of Civil Enforcement Procedure: identification of the enforceable title, statement of the sums claimed, description of the property, an indication that failing payment within eight days the procedure will continue by forced sale, a warning that instructing a lawyer is compulsory and that it is possible to apply for a sale by agreement.

Its service immediately produces three economic effects that are decisive for the enforcing creditor.

• The property becomes unavailable: Article L. 321-2 makes the property non-attachable by other routes and neutralises the debtor's acts of disposal.
• Disposals made afterwards are unenforceable against the enforcing creditor, unless the price is deposited under the conditions provided for in Article L. 321-5.
• The fruits of the property, in particular rents, are immobilised and allocated to payment of the creditors, the debtor remaining in possession as sequestrator.

For a defaulting landlord holding a let asset, this immobilisation of rents is often the first lever in negotiation, well before adjudication.

The first fatal time limit: two months to publish

The payment order must be published at the land registry within two months of its service, on pain of lapse, pursuant to Article R. 321-6. This period is short where the land registry rejects the formality because of an error in the cadastral description or in the owner's identity. Lapse, recorded by the enforcement judge under the conditions of Article R. 311-11, annihilates all the effects of the payment order, including the unavailability. The creditor must then start again, having lost its de facto priority and revealed its strategy. The rules on publication and the cases of lapse are detailed in our article on the payment order operating as a seizure of real property.

A second horizon not to be lost sight of: publication starts the two-year expiry period of Article R. 321-20. If no mention of a judgment recording the sale has been entered in the margin of the payment order within that period, the order ceases to have effect, unless extended by the enforcement judge. In heavy contentious files, where successive appeals lengthen the procedure, the application for extension must be anticipated and not made on the eve of the deadline.

From the payment order to the summons: two months to lock down the sale file

Once the payment order has been published, the enforcing creditor has two months to summon the debtor to the orientation hearing, on pain of lapse (Article R. 322-4). The hearing is set for a date between one and three months after the summons. These two months must be used to put several formalities together simultaneously.

The descriptive report is drawn up by the commissaire de justice after the eight-day period opened by the payment order has expired, under the conditions of Articles R. 322-1 to R. 322-3. It describes the premises, their composition and their actual occupation. Its quality directly conditions the adjudication price: a report that is incomplete on the rental position or on apparent defects discourages professional bidders and mechanically lowers the proceeds of the sale.

The statement of conditions of sale is drafted by the enforcing creditor's lawyer. It must be filed at the registry of the enforcement judge within five working days following the summons of the debtor, on pain of lapse of the payment order (Article R. 322-10). It contains in particular the enforceable title, the descriptive statement of the property, the conditions of sale and the amount of the reserve price (mise à prix).

Within the same period of five working days, the enforcing creditor notifies the payment order and the summons to the registered creditors, on the basis of the mortgage register requested from the land register (Articles R. 322-6 and R. 322-7). This notification operates as a demand to declare their claim within two months, on pain of loss of the benefit of their security in the distribution. For a second-ranking creditor, this period is the most dangerous in the whole procedure: it is not fatal to the seizure, it is fatal to recovery. On the position of the registered creditor receiving this notification, see our analysis of notification and distribution of the price in forced sales of real property.

The reserve price: an economic decision, not a formality

The amount of the reserve price is set by the enforcing creditor in the statement of conditions of sale. Article L. 322-6 of the French Code of Civil Enforcement Procedure draws a formidable consequence from this: in the absence of any bid, the enforcing creditor is declared purchaser by operation of law at the amount of the reserve price. A reserve price set too low to attract bidders can therefore turn a bank into the owner of an asset that it has neither the vocation nor the means to manage, with co-ownership charges, compliance works and taxation to follow. The decision is made by weighing market value, occupation status, the liquidity of the local market and the creditor's ability to hold the asset. The debtor may also ask the judge, at the orientation hearing, to reduce or increase the reserve price.

The orientation hearing: the tipping point of the forced sale

The orientation hearing is the centre of gravity of the procedure. Pursuant to Article R. 322-15, the enforcement judge checks there that the conditions for enforcement are met, rules on challenges and incidental applications, determines how the procedure is to continue, taxes the costs of enforcement and, if authorising a sale by agreement, sets the minimum price.

Its most structuring effect is procedural. Article R. 311-5 provides:

On pain of inadmissibility raised by the court of its own motion, no challenge and no incidental application may, unless otherwise provided, be made after the orientation hearing.

This principle of concentration is the enforcing creditor's main lever. All the debtor's defences, nullity of the payment order, challenge to the acceleration of the term, grounds drawn from consumer law, limitation, must be raised before this hearing by submissions from a lawyer. Beyond that point, the challenge is inadmissible. The corollary is symmetrical: the creditor must have secured each link of its contractual chain beforehand, because the orientation hearing is the only window in which the substance of its claim will be discussed.

The orientation judgment may be appealed within fifteen days of its notification, under the fixed-date procedure (jour fixe) provided for in Article R. 322-19. This appeal defers the sale and must be built into the forecast recovery timetable.

Sale by agreement or forced sale: the enforcing creditor's decision

If the debtor applies for authorisation to sell by agreement, the judge may grant it provided he considers that the sale can be concluded on satisfactory terms. He then sets a price below which the property may not be sold and calls the case back to a hearing within a period that may not exceed four months, extendable by three months at most if signature of the notarial deed is about to be completed (Article R. 322-21).

The decision for the creditor is not ideological, it is economic. A sale by agreement generally produces a higher price than adjudication and limits costs, but it consumes four to seven additional months and leaves the debtor in control of the commercial timetable. A forced sale gives a fixed date, at the price of a frequent discount and the risk of adjudication by operation of law. Where the asset is atypical, burdened with defects or located in an illiquid market, a sale by agreement under the supervision of the judge often remains the most profitable route for the enforcing creditor. The terms of this decision are developed in our article on sale by agreement in forced sale proceedings and the enforcing creditor's strategy.

The forced sale: publicity, bidding and what follows adjudication

Where the forced sale is ordered, the judge sets the date of the adjudication hearing within a period of between two and four months from the orientation hearing (Article R. 322-26). This period is devoted to the regulatory publicity measures, a notice in a legal announcements newspaper, posting, optional supplementary publicity, and to organising viewings of the property by the commissaire de justice. Supplementary publicity, often neglected because it costs money, is nonetheless the main factor in raising the adjudication price on significant assets.

Bids are made through a lawyer. Once adjudication has been pronounced, three time limits follow one another.

• The higher bid of one tenth: any person may, within ten days following adjudication, bid at least one tenth above the principal price, by a declaration to the registry made through a lawyer, notified in the forms of Article R. 322-50. A new adjudication hearing is then organised.
• Payment of the price: the purchaser must deposit the price and pay the taxed costs within two months. Failing this, the re-auction procedure provided for in Articles L. 322-12 and R. 322-56 allows the property to be put up for sale again at the risk of the defaulting purchaser.
• Publication of the sale deed at the land register, which discharges the registered mortgages and privileges pursuant to Article L. 322-14.

The adjudication judgment is not, in principle, open to appeal, except for the parts ruling on a challenge. It constitutes an eviction order against the debtor whose property was seized within the meaning of Article L. 322-13, which is not the case with regard to a third-party occupier benefiting from an enforceable lease: this distinction governs how bidders value the property and must be dealt with in the statement of conditions of sale.

The distribution of the price: where recovery is really decided

Adjudication pays nobody. It is the distribution of the price, governed by Articles L. 331-1 et seq. and R. 331-1 et seq. of the French Code of Civil Enforcement Procedure, that determines what each creditor actually receives.

Where only one creditor is involved, or where the price is sufficient to pay everyone, payment is made directly. In other cases, the enforcing creditor draws up a draft distribution within two months following payment or deposit of the price, then notifies it to the participating creditors and to the debtor. The recipients have a short period in which to contest; failing that, their acceptance is presumed and the draft is approved, opening the way to the issue of payment orders. If there is a challenge, the distribution moves into a judicial phase before the enforcement judge.

The order of distribution follows the hierarchy of security interests as redrawn by Ordonnance No. 2021-1192 of 15 September 2021 reforming the law of security interests: legal costs incurred in the common interest, super-priority claims, creditors holding real property security according to their rank of registration, then unsecured creditors (chirographaires) on the balance, which is frequently nil. A registered creditor who has allowed the two-month period for declaring its claim to expire finds itself deprived of the benefit of its security in this distribution: it kept its mortgage until the purge, without drawing a euro from it.

Events that derail the timetable

Three categories of incident suspend or annihilate the chronology.

First, incidents relating to the debtor. The opening of safeguard, reorganisation or judicial liquidation proceedings entails a stay of individual actions pursuant to Article L. 622-21 of the French Commercial Code. In liquidation, the liquidator takes over the realisation of the property, the creditor holding special real property security being able to regain its right of individual enforcement if the liquidator does nothing, under the conditions of Article L. 643-2 of the same Code. A decision of admissibility in over-indebtedness proceedings has a distinct suspensive effect, capable of postponing adjudication.

Next, incidents relating to the creditor: lapse for failure to observe a time limit, two-year expiry of the payment order, striking off. They are all avoidable and depend exclusively on the rigour of the enforcing creditor's lawyer.

Finally, incidents relating to the judge: periods of grace granted to the debtor on the basis of Article 1343-5 of the French Civil Code, adjournments, appeal of the orientation judgment under the fixed-date procedure. These contingencies cannot be controlled, but they can be budgeted for in the recovery plan.

Conclusion: treat the seizure as a timetable, not as a series of acts

A forced sale of real property is not a complex procedure on the merits. It is a procedure with short time limits, whose dominant sanction, lapse, strikes the creditor and not the debtor. Experience of contentious files shows that the value created by the enforcing creditor's lawyer lies in three precise points: the solidity of the title and of the acceleration of the term before the payment order, keeping to the two-month timetable between publication, summons and filing of the statement of conditions of sale, and the setting of the reserve price, which determines both the risk of adjudication by operation of law and the distributable proceeds.

Before serving the payment order, have a dated backward schedule drawn up step by step, with the lapse deadlines identified, the two-year expiry point and the final date for declaring the claim in respect of your other registrations. This document, validated beforehand by the person in charge of the file, is worth more than any procedural strategy improvised at the orientation hearing.

Frequently asked questions

What is the total duration of a forced sale procedure for real property? An uncontested file, referred directly to a forced sale, generally runs for ten to twelve months between service of the payment order operating as a seizure and adjudication, to which several months are added for the distribution of the price. Authorisation of a sale by agreement adds up to seven months, given the four-month period provided for by Article R. 322-21 of the French Code of Civil Enforcement Procedure and its possible three-month extension. An appeal against the orientation judgment, brought within fifteen days under the fixed-date procedure, lengthens the schedule further.

Which time limits cause the payment order operating as a seizure to lapse? Three principally: publication of the payment order at the land registry more than two months after its service (Article R. 321-6), summons of the debtor to the orientation hearing served more than two months after publication (Article R. 322-4), and filing of the statement of conditions of sale at the registry more than five working days after the summons (Article R. 322-10). Lapse is recorded by the enforcement judge under the conditions of Article R. 311-11 and annihilates the effects of the payment order, including the unavailability of the property.

What happens if nobody bids at the adjudication hearing? Article L. 322-6 of the French Code of Civil Enforcement Procedure provides that in the absence of any bid, the enforcing creditor is declared purchaser by operation of law at the amount of the reserve price that it set itself. It then becomes the owner of the property and bears the costs, the co-ownership charges and the operating constraints of the asset. This risk makes it necessary to calibrate the reserve price in light of the real liquidity of the local market and the creditor's ability to hold the property.

Does a registered creditor that does not declare its claim lose its mortgage? It keeps its registration until the purge resulting from publication of the sale deed, but it is deprived of the benefit of its security in the distribution of the price if it has not declared its claim within two months of the notification made to it (Articles R. 322-6 and R. 322-7 of the French Code of Civil Enforcement Procedure). In practice, the rank becomes ineffective and the claim is treated as unsecured on a balance that generally does not exist. Monitoring of notifications received must therefore be systematised for lenders with many files.

Can the debtor still contest the debt after the orientation hearing? No, unless otherwise provided. Article R. 311-5 of the French Code of Civil Enforcement Procedure makes inadmissible, raised by the court of its own motion, any challenge or incidental application made after the orientation hearing. This principle of concentration of arguments protects the enforcing creditor, but symmetrically requires it to have cleared all the weaknesses in its title before this hearing, since it is the only window for discussion on the merits.

Does the opening of collective proceedings stop a forced sale already under way? Yes. Article L. 622-21 of the French Commercial Code entails a stay of individual actions from the opening judgment, including where the payment order has been published and the orientation hearing set. In judicial liquidation, realisation of the property falls to the liquidator, the creditor holding special real property security being able nonetheless to regain its right of individual enforcement under the conditions of Article L. 643-2. Checking that no proceedings are pending must precede any service of a payment order.

Sale by agreement or forced sale: which to choose from the creditor's standpoint? A sale by agreement usually produces a higher price and lower costs, but it leaves the commercial timetable to the debtor and may consume up to seven additional months. A forced sale offers a fixed date and an enforceable result, at the price of a discount and the risk of adjudication by operation of law at the reserve price. The decision is made case by case, according to the liquidity of the asset, its occupation status and the creditor's ability to bear a longer recovery period.