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Companies in difficulty
Seizability of the principal residence: the sole trader must prove this
Publié le null - Legal and Administrative Information Directorate (Prime Minister)
In order to oppose the forced sale of a property, the sole trader in receivership must prove that it is his principal residence. This is what the Court of Cassation stated in a judgment published in the bulletin issued by the Commercial Chamber on 14 June 2023.
An individual contractor has been put into receivership. In that regard, he opposes the sale of a property which he owns, since he considers it to be his principal residence.
The Court of Appeal held that the immovable property which was the subject of the sale did not constitute the sole proprietor’s principal residence. The applicant’s business was operated in a department other than that in which the immovable property put up for sale by auction is located. This property is therefore liable to seizure by the creditor. In the present case, an individual entrepreneur carrying on his professional activity in Guadeloupe opposes the forced sale of a property situated in the Val d'Oise.
The Court of Cassation dismisses the entrepreneur's appeal. It considers that the Court of Appeal made a fair deduction from the evidence and that the applicant has not proved that the immovable property put up for sale constitutes his principal residence.
Thus, that judgment states that the onus is on the individual entrepreneur to prove that the property to be sold is his principal residence on the date of the judgment initiating the winding-up proceedings.