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Evict a squatter from his second home: mission impossible?

2020-09-10T16:01:47.083Z


FIGAROVOX / INTERVIEW - The owners of the Théoule-sur-mer house which has been squatted in recent days have been able to return to their second home. French law is unfavorable to owners, regrets lawyer Guillaume Jeanson.


Guillaume Jeanson is a lawyer at the Paris bar and a former spokesperson for the Institut pour la justice.

FIGAROVOX.- The misadventure of a couple of owners whose house in Théoule-sur-mer was squatted aroused strong media emotion.

French law is deemed to be very unfavorable to owners: is this your opinion?

Yes, a textual disparity in the penal code highlights this phenomenon fairly well: In certain cases, the squatter can indeed be prosecuted for an offense which can be found in article 226-4 of the penal code.

This actually comprises two components.

First,

"the introduction into the home of others with the help of maneuvers, threats, assault or coercion, except in cases where the law allows it".

Then,

"The maintenance in the home of others following (such) introduction"

.

This offense carries a one-year prison sentence and a fine of 15,000 euros.

Conversely, since a law of March 24, 2014, the fact that the owner of the premises forcing the same squatter to leave the premises, without having obtained the assistance of the State for this under the conditions set by the code of procedures civilians of execution, using maneuvers, threats, assault or coercion, makes him incur a much heavier sentence than that incurred by his squatter: 3 years in prison and a 30,000 euros fine.

This disparity alone obviously does not exhaust the complexity of this subject, which rests above all on the procedural mysteries necessary to achieve the eviction of a squatter, in compliance with all the requirements of the law.

Which, for the owner of the premises, can prove to be long, costly and uncertain.

So a question keeps coming back: how can the law protect, with such generosity, those who violate it yet gleefully?

But it should still be noted that for several years we have also witnessed a certain decline in the scope of the protection conferred on squatters.

At least, when they attack the home of a third party.

A first important step in this regard dates from a law of June 24, 2015 and a second from the ELAN law of November 23, 2018.

The 2015 reform circumvented, for homes only, the difficulty arising from what is generally presented in practice as a period of 48 hours beyond which it is no longer possible to easily recover one's property.

Is the legislation even more accommodating with squatters when it comes to a second home?

Yes, because the reform of June 24, 2015 circumvented, for homes only, the difficulty arising from what is generally presented in practice as a 48-hour period beyond which it is no longer possible to easily recover one's property.

The actual legal translation is a little more complex, but it nevertheless leads to offer a differentiated treatment between the squatting of homes and that of second homes.

This difference was further accentuated with the ELAN law, which notably eliminated the benefit of the winter break for home squats.

The judge has a simple option to suppress it for the other squats.

Some politicians have tried to counter this disparity by widening the penal systems.

On March 20, 2019, a bill presented by Julien Aubert and co-signed by nearly seventy other deputies to

“penalize the appropriation of the property of others without a legitimate reason”

was registered in the Presidency of the National Assembly.

.

The explanatory memorandum to this text, which in particular creates a new criminal offense, is unequivocal:

"it is up to the legislator to do what is necessary to remedy this legal vacuum by creating a legislative framework around the occupation without right or title of bad faith of a building, beyond the simple protection of the "home", as interpreted by case law ".

Read also:

The bewildering affair of the squatters of Théoule-sur-Mer

Is a debate desirable to reconsider the current state of the law?

Without a doubt.

It would then refer us to the contours of the right to property, a right of constitutional value, and even more to the means of ensuring its defense in an effective manner.

It is in this respect curious to note, that supposing it even possible, the conviction of the squatters is carried out on the basis of a criminal offense mentioned above and inserted in the book 2 of the penal code dedicated to the

“crimes and misdemeanors”. against persons ”

and in a section entitled

“ invasion of privacy ”

.

Despite the 2015 reform which offered more autonomy to the notion of "

keeping in the premises"

, it is therefore understandable that this offense was probably apprehended by the drafters of the penal code as a mode of defense of the privacy of people.

According to this conception, it is in fact this intimacy which is violated by the unwanted intrusion into the premises of an outside person.

The phenomenon that we are witnessing with the organized squat testifies on the contrary to a real desire for temporary appropriation of the real estate of others.

But the phenomenon we are witnessing with the organized squat no longer has anything to do with any defense of privacy or any respect for privacy.

On the contrary, by its long-term commitment, it shows a real desire for temporary appropriation of the real estate of others.

It thus no longer reveals an attack on the person but, on the contrary, an attack on his property.

The fact that this appropriation is only temporary (the squatter knowing full well that he will end up being expelled one day by the slow intervention of the police) does not change the problem.

Case law has in fact been able to recognize the offense of theft on the assumption that a vehicle was only “borrowed” temporarily (during a rodeo, for example), before being abandoned.

The place of the criminalization relating to the organized practices of these squats would therefore deserve to appear instead in book 3 of the penal code devoted to

"crimes and offenses against property"

and in its title 1 entitled

"fraudulent appropriations"

.

It should be, not to respond to a doctrinal whim of a jurist, but to draw from it all its practical significance.

Because how to explain, according to an economic logic of crime, that a vehicle loan or the fraudulent appropriation of a piece of furniture from another person incurs a penalty of 3 years in prison and 45,000 fine (when these penalties are not still weighed down by an imposing list of aggravating circumstances), where that of a property - home or other - whose value is most often greater than them, only incurs a sentence of one year in prison and 15,000 euros fine?

Can the only explanation relating to the fact that the temporary appropriation of real estate constitutes a breach of the

“right to respect for private life”

and not of the

“right to property”

suffice?

In general, according to you, is France a country in which it is not good to own?

I prefer to leave this assessment to economists and sociologists.

What I note worryingly, on the other hand, is the fact that a legal regime perceived by many as unfair is likely to generate serious disorders.

Why?

Because it then encourages some to do “justice” themselves.

“Justice” with all the ardor and excesses conducive to triggering uncontrollable spirals of violence, revenge and reprisals.

This is also what began to happen two years ago in Garges-lès-Gonesse, when a group of young people undertook to forcefully expel the Roma who occupied the pavilion of a septuagenarian.

Their slogan, abundantly retweeted, left little room for ambiguity:

“When French justice is inconsistent, we use force”

.

Fortunately, the police managed to avoid a pitched battle at the last minute, in which the photos of the weapons of the participants (pump rifles, tokarevs, dogs, etc.) augured for the worst.

The Théoule-sur Mer affair seems to have been able to be settled very opportunely by an arrest for domestic violence which in reality leaves intact the more general problem of the overprotection of squatters in the face of certain owners.

Will we have to wait for a tragedy to occur for the public actors to finally decide to open their eyes?

Source: lefigaro

All news articles on 2020-09-10

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