Beziers court found us guilty for an illegal window made by the previous owner

[AnOther]

[quote user="carter"]who would normally pass the court's decision on to us? Or is it assumed we must find out for ourselves?[/quote]Again referring to my own experience, I was contacted by the advocat acting for the seller asking whether we wished for him to continue on my behalf or not. Obviously I did as the seller was commited to paying his costs and to change would have placed it on my account instead.

Although there was nothing I needed to do I did go to see him anyway just to personally review the case but as I said earlier the outcome was neither here nor there and really seemed to be more about two bitter and twisted French matriarchs hating each others guts and out to make trouble for one another than the actual issue of a servitude !

[carter]

Yes our co-defendent is the previous owner(s), the ones who sold us the house in 2005 and they (6 of them) were all represented by the same avocat at the 2009 tribunal: one of them, Rene, subsequently appealed. While the fact that they were represented is noted in the record against each one, against our names it reads: 'non représentée'. I have the name of the greffier who attended the tribunal: is it worth trying to contact her?

[woolybanana]

Does you house insurance policy offer legal protection cover? That might be a good starting point. Otherwise, I feel you might need your own lawyer and fast as there seems to be a policy here of dumping on you as the current owners as well as a convenient series of lies as to the state of the house, your residence etc.

[carter]

no its the basic buildings cover. We've started talking to an english-speaking avocat in Montpellier who has suggested she could write to the judge of the upcoming appeal declaring that we were not properly notified from the outset, but even then she thinks we need to prove this, which involves first finding the evidence then presenting it in court. I'm now trying to find out exactly what attempts were made to notify us at each stage

[AnOther]

I doubt that any house insurance, even with a protection juridique clause, would extend to a dispute or case which was ongoing when you bought a property.

Once again when I took out mine I asked that question and was told that whilst new claims may be covered an existing one could not be which is logical and proper as that is not the purpose of insurance.

[carter]

for those interested I have an update: this afternoon I spoke to the avoue representing the neighbour and he admits that his client did not contact us until now, knows of the anomaly with the address but doesn't know why. He confirmed that due to the appeal the findings of the 2009 Beziers tribunal cannot be enforced until the Montpellier court of appeal confirms them or otherwise, but we need to demand that the penalties for not blocking the window should not be retroactive. I think now I need to instruct an avocat to write to this avoue and his avocat proposing a settlement whereby we fix the window without further delay, then if the appeal goes ahead we can ask with some justification that we be excluded from any costs or penalties.

[pachapapa]

I think using the english speaking lady advocat is a good idea. Small point advocats in france are attached to a local Barreau, for example Montpellier, not all advocats can represent in the Appeal Court. I would concentrate on the Appeal rather than distract yourself on the complications of the lower court; in the event that there were faults in informing you which are relevant to a withdrawal from the appeal action; then she will be able to do it much quicker than you. As things stand at the moment the pleadings in the appeal court are likely to be supported by the same evidence and she may need to seek something extra proving a "vice de forme", essentially that the correct procedure has not been followed. An appeal hearing is effectively a retrial and new and additional evidence can be presented if it is included in the pleadings. I would get that lady advocat on board as soon as possible, english speaking advocats are rare; just make sure she has rights of audience in the appeal court.

[carter]

Thank you very much for your input everyone, especially pachapapa. The 'vice de forme' idea sounds like the best way to go at least as leverage to persuade them to settle before the appeal as we'd rather not go to the expense of avoue and avocat in court, which will be a minimum of 1500euros. According to the sale agreement, the money reserved for the window can only be claimed against builders invoices, not lawyers fees. Once the neighbours realise that because of this mistake by their lawyers they will probably not be awarded costs, and that we will solve the window in accordance with their demands anyway, they should be happy to not go to court. Its astonishing that at the tribunal in Beziers, where 3 judges and a greffiere sat to deliberate over the documents, first in public then in camera, no one commented that it was odd that the defendents were on record as residing at the house of the plaintiff!

[pachapapa]

Always seem to be "lady greffs".[:)]

The avoidance or minimisation of costs is most important as a court in france has very wide powers either on a " condamné au dépens" basis or/and under the provisions of Article 700 of the Code de Procèdure Civil.

http://vosdroits.service-public.fr/F889.xhtml

As to not noticing the wrong address, I would note that the conduct of a case in a french court is NOTHING like an anglo-saxon hearing; an english & welsh court hearing is based on an encounter between two adversaries where the judge is an observer of the action and not a direct participant; whilst in a french court ALL groups are active participants. This results in any last vestige of the formalities of representation are thrown aside with everybody shouting at each other. A triviality like a wrong address would have been ignored even if it was noticed.  But this will count in your favour as the plaintiff's counsel has had plenty of time to correct the error.

As an anecdote, to date[;-)], I have only followed one case through to appeal at the Court of Appeal in Poitiers. I expected and was convinced that I would obtain " gain de cause" in the action but to my surprise my appeal was "débouté". A complete travesty of justice! I also got hit with an Article 700... I am still seething and livid.[6]

Good Luck!

[carter]

We've had some advice that I wanted to post here as it may be useful to others, but also to get a second opinion. Article 478 of the Code de procédure civile states: 'Le jugement rendu par défaut ou le jugement réputé contradictoire au seul motif qu'il est susceptible d'appel est non avenu s'il n'a pas été notifié dans les six mois de sa date.' My translation attempt for this would be: 'A judgment rendered by default or a judgment deemed contradictory just because it is able to be appealed, is null and void if it has not been notified within six months of its date.'

If this applies to us ('by default' refers to its being made in our absence, apparently), then given the fact that the first notice we received at our correct address was sent by the Avoue at the appeal court in Feb 2011 and the judgement of the tribunal was in April 2009, 22 months earlier, we can apply to the greffier of the tribunal for it to be declared 'non avenu' on this basis. We may even be able to do this without having to use an avocat to write the letter....

[pachapapa]

At the TGI level the Assignation, the writ informing of the action by the aggrieved plaintiff; as well as the Citation, the advise informing of the day of the court hearing must be considered.

Consider Art 473 of the NCPC:

Lorsque le défendeur ne comparaît pas, le jugement est rendu par défaut si la décision est en dernier ressort et si la citation n'a pas été délivrée à personne.
Le jugement est réputé contradictoire lorsque la décision est susceptible d'appel ou lorsque la citation a été délivrée à la personne du défendeur.

Whilst some actions may be considered as of last resort and not subject to appeal; however in your case, although you did not receive the Citation, the matter  would presumably still remain in the category of "contradictoire".  The appeal was in fact exercised during the two month period, just ONE of the parties sharing the acton can appeal and all parties are joined to the action.

In my opinion it is "contradictoire" and not "défaut".

There may be jurisprudence on similar facts from the Cour de Cassation.

A useful link:

http://www.lexinter.net/NCPC/jugement_par_defaut_et_jugement_repute_contradictoire.htm

[carter]

Thank you for this. Another day in prospect translating french legal codes, I fear!

Presumably whether 'defaut' or 'contradictoire', article 478 is still our simplest way of rectifying this. You mention the 'Citation', 'the advise informing of the day of the court hearing': do you know which article of the code refers to this part of the process?

[pachapapa]

definition citation;

Acte remis par un huissier de justice ou émanant du greffe de la juridiction qui ordonne à une personne de se présenter, devant une juridiction, comme partie à une instance ou comme témoin. Exemple : citation à comparaître.

An act done by a huissier or emanating from the greffe of the jurisdiction which orders a person to present themselves, before a jurisdiction, as a party to a matter before a court or as a witness. Example citation to appear;

Note there are several jurisdictions, penal, civil, administrative, etc.

Summons Subpoena.