End-of-tenancy inventory drawn up by a bailiff

The end-of-tenancy inventory (état des lieux de sortie) is a sensitive moment in the landlord-tenant relationship. When disagreements arise or a dispute is looming, calling on a bailiff (huissier de justice) is often the safest way to obtain an objective record that can be relied upon against the other party. Although this procedure entails additional costs, it gives both parties maximum legal certainty.

This article examines in detail the procedure for an end-of-tenancy inventory drawn up by a bailiff, its advantages, its practical arrangements and the situations in which it is required. We also analyse the legal consequences of the bailiff's report (constat) and the remedies available if it is challenged.

Principle and legal basis of the inventory drawn up by a bailiff

Legal nature of the bailiff's report

The end-of-tenancy inventory drawn up by a commissaire de justice (formerly huissier de justice, or bailiff) does not, as regards its findings, have the probative force of an authentic instrument (acte authentique). Except in criminal matters, the findings of the commissaire de justice are conclusive until proven otherwise (Article 1 of Ordinance No. 2016-728 of 2 June 2016 on the status of commissaire de justice). Unlike an inventory drawn up by the parties or by a private third party, the report thus has particular probative force: it is for the party challenging it to provide proof to the contrary, without having to bring forgery proceedings (inscription de faux).

The bailiff, a sworn public officer (officier ministériel), incurs professional liability for his findings. He must observe the adversarial principle and allow the parties present to make their observations, which he records faithfully in his report. The same tool is used before building works begin, as explained in our article on the purpose of a bailiff's report before works.

Interaction with the general law of leases

The check-out procedure conducted by a bailiff falls within the general framework of the tenant's and landlord's obligations. Article 1730 of the French Civil Code requires the tenant to return the leased premises in a good state of tenant's repairs. Article 1731 provides that the tenant is liable for damage occurring during his occupation, unless he proves that it occurred without his fault. Difficulties specific to commercial premises, between landlord and commercial tenant, are dealt with in our article on inventory disputes under a commercial lease.

The bailiff's report makes it possible to establish objectively the actual condition of the dwelling and to determine the respective liabilities, particularly where the check-in inventory is missing or has significant gaps.

Situations justifying recourse to a bailiff

Missing or inadequate check-in inventory

Where the check-in inventory was not drawn up or proves incomplete, the parties find it difficult to determine which damage is attributable to the tenant. A tenant who has occupied a flat for eight years without a check-in inventory may legitimately fear being held liable for damage that predates his arrival. Conversely, the landlord struggles to establish the tenant's liability.

In this situation, the bailiff's report becomes a means of settling matters. The bailiff examines each element of the dwelling in detail and records all damage observed. In the absence of a check-in inventory, the case law generally considers that the tenant received the premises in good condition, unless he proves otherwise, which he may do by any means.

Clear disagreement between the parties

Disagreements of assessment are the natural ground for a bailiff's report. A landlord considers that a stain on the ceiling results from water damage caused by the tenant's negligence, while the tenant relies on normal wear and tear. A tenant disputes that the wear on the parquet floor is excessive, arguing that it reflects normal occupation over fifteen years.

These situations call for a technical and neutral view. The commissaire de justice confines himself to factual findings and does not express a view on the cause of the defects; where the question is technical, the parties may call on an expert, appointed either by agreement or by the court.

Significant financial stakes

As soon as the sums at stake exceed the amount of the security deposit, generally equivalent to one month's rent, securing the position through a bailiff becomes economically worthwhile. A high-end flat let at €2,500 per month can give rise to disputes over several thousand euros of repairs.

Where the inventory cannot be drawn up amicably and is drawn up by a commissaire de justice pursuant to Article 3-2 of Law No. 89-462 of 6 July 1989, its cost is set by decree issued after consultation of the Conseil d'État (décret en Conseil d'État) and shared equally between the landlord and the tenant. It remains modest in relation to what is at stake. This preventive approach often avoids far more costly court proceedings.

Practical conduct of the procedure

Initiative and summoning of the parties

Where the inventory cannot be drawn up jointly (contradictoirement) and amicably by the parties or by a third party appointed by them, it is drawn up by a commissaire de justice, at the initiative of the more diligent party, with the costs shared equally between the landlord and the tenant (Article 3-2 of Law No. 89-462 of 6 July 1989).

The commissaire de justice notifies the parties at least seven days in advance, by registered letter with acknowledgement of receipt (Article 3-2 of the Law of 6 July 1989). The notice states the purpose of the visit, and the date, time and place of the appointment.

The failure of a party to attend does not paralyse the procedure. The bailiff draws up the report in the presence of those who attended, recording the absence of the others. This rule prevents delaying tactics.

Method of inspection

The bailiff proceeds methodically, room by room, generally starting with the outside of the dwelling if it has private outdoor areas (balcony, terrace, garden). He successively examines the floor coverings, walls, ceilings, joinery, electrical and sanitary installations, and the equipment provided.

Each defect is described precisely, often with time-stamped and geolocated photographs. The bailiff carefully distinguishes normal wear and tear, which falls on the landlord, from damage attributable to the tenant. He also records the observations and explanations of the parties present.

For complex technical equipment (boiler, built-in appliances), the bailiff may recommend that a specialised technician attend, or record that no operating test was carried out if conditions did not allow it.

Handover of keys and related formalities

The keys are generally handed over at the end of the inspection, unless the parties agree otherwise. The bailiff expressly records this in his report, stating the number and type of keys returned (building entrance, flat and letterbox keys, access fobs).

If urgent repairs are needed (water leak, safety issue), the bailiff expressly points them out and may recommend that they be dealt with immediately. This diligence prevents the defects from worsening and avoids later arguments about liability.

Content and probative value of the report

Constituent elements of the report

The bailiff's report must contain the precise identification of the dwelling, the date and conditions of the visit, the identity of the persons present, a detailed description of the condition of the premises and the observations received.

The bailiff records the utility meter readings (electricity, gas, water) so that the final bills can be issued. He also records the condition of mandatory safety equipment: smoke detectors, stopcocks, evacuation devices.

Photographs are an essential part of the file. They must be numerous and precise enough to allow an objective assessment later. The bailiff favours general views followed by close-ups of the defects found.

Particular probative force

The report of a commissaire de justice benefits from a presumption of accuracy: except in criminal matters, its findings are conclusive until proven otherwise (Article 1 of Ordinance No. 2016-728 of 2 June 2016). It does not have the enhanced probative force of an authentic instrument, which is conclusive until challenged through forgery proceedings.

In practice, the findings of the commissaire de justice prevail unless the party challenging them provides proof to the contrary, for example by means of another report, dated photographs, invoices for works or witness statements. Recourse to forgery proceedings is not necessary.

Limits of the report

The bailiff records what he sees at the time of his visit, without being able to trace the causes of the defects observed. A damp wall may result from an old water ingress, inadequate ventilation or inappropriate conduct by the tenant. The bailiff notes the presence of damp without stating its origin, unless there is objective and conclusive evidence.

Similarly, the bailiff cannot systematically test all equipment, particularly when utilities are cut off, or in winter for air-conditioning installations. He records these limitations in his report.

Allocation of costs and liabilities

Principle of advancing the costs

The party requesting the attendance of the commissaire de justice generally advances the costs. Where the inventory is drawn up by a commissaire de justice in the absence of amicable agreement, its cost is not freely set: it is determined by decree issued after consultation of the Conseil d'État and shared equally between the landlord and the tenant (Article 3-2 of the Law of 6 July 1989).

Final allocation between the parties

For the inventory drawn up by a commissaire de justice in the case provided for in Article 3-2 of the Law of 6 July 1989, the law sets the allocation: the costs are shared equally between the landlord and the tenant. Any clause requiring the tenant to pay for the end-of-tenancy inventory, where it is not drawn up by a commissaire de justice in that case, is deemed unwritten (Article 4(k) of the same Law).

Consequences and next steps

Post-report negotiation

The bailiff's report often acts as a salutary wake-up call that encourages negotiation. The parties have an objective basis on which to discuss the necessary repairs and who should bear them. A tenant who initially denied all liability may agree to bear the damage that is clearly established.

This negotiation phase, generally conducted with the assistance of each party's lawyer, makes it possible to avoid court proceedings. A settlement agreement (protocole transactionnel) may be signed, setting out each party's obligations and the terms of payment.

Use in litigation

If negotiation fails, the bailiff's report becomes a key document in the court file. Its particular probative force largely guides the decision of the court, which has objective evidence on which to decide the dispute.

The court may order an additional court-appointed expert assessment for complex technical questions; the material findings of the commissaire de justice can then be set aside only by proof to the contrary. This evidential stability often speeds up the resolution of the dispute.

Impact on the security deposit

The inventory drawn up by a commissaire de justice directly affects the fate of the security deposit. The deposit must be returned within a maximum of two months from the handing over of the keys, less, where applicable, any sums still owed to the landlord; this period is reduced to one month where the end-of-tenancy inventory matches the move-in inventory (Article 22 of Law No. 89-462 of 6 July 1989). Proven damage justifies proportionate deductions.

A landlord who retains all or part of the security deposit contrary to a report favourable to the tenant exposes himself to penalties. Failing repayment within the time limits, the balance of the security deposit owed to the tenant is increased by a sum equal to 10% of the monthly rent excluding charges, for each monthly period of delay begun (Article 22 of Law No. 89-462 of 6 July 1989).

Possible remedies and challenges

Remedies against the report

The report of a commissaire de justice may be challenged by proof to the contrary, without any need to bring forgery proceedings.

More often, the parties dispute the interpretation of the findings rather than their materiality. A report referring to "dark marks on the ceiling" may give rise to debate on their origin and attribution, without their existence being called into question.

Additional court-appointed expert assessment

The court may order a court-appointed expert assessment to clarify complex technical points not resolved by the initial report. This assessment, carried out by a professional registered on the court lists of experts, supplements and clarifies the findings of the commissaire de justice; it may also provide proof contrary to some of them.

The court-appointed expert can thus determine the origin of damp, assess the cost of repairs or assess whether wear is normal or excessive. His conclusions, which are subject to adversarial debate, guide the court's final decision.

Liability of the bailiff

The bailiff incurs professional liability in performing his assignment. A clear fault in drawing up the report (serious omission, manifest error, partiality) may give rise to a claim against him in professional civil liability.

This liability, covered by compulsory insurance, protects the parties against the harmful consequences of professional negligence. It reinforces the reliability of the system and the acceptance of reports by the courts.

Frequently asked questions

Can a tenant refuse an inventory by a bailiff requested by the landlord?

The tenant cannot object to a bailiff's report requested by the landlord at the end of the lease. The bailiff will proceed even in his absence, recording his failure to attend. However, it is in the tenant's interest to attend in order to make his observations and, where appropriate, dispute certain attributions.

Can the bailiff's costs be charged to the tenant if damage is found?

Where the inventory is drawn up by a commissaire de justice pursuant to Article 3-2 of the Law of 6 July 1989, in the absence of amicable agreement, the costs are shared equally between the landlord and the tenant, at a rate set by decree issued after consultation of the Conseil d'État. A lease clause making the tenant liable for the cost of the end-of-tenancy inventory outside that case is deemed unwritten (Article 4(k)). The cost of repairing damage attributable to the tenant may, on the other hand, be deducted from the security deposit, under the conditions laid down in Article 22.

Can a bailiff's report be drawn up in the landlord's absence?

The bailiff may draw up the report in the absence of a landlord who has been duly summoned, particularly if that absence is clearly a delaying tactic. He then records in his report the conditions of the visit and the absence of the defaulting party. The report retains its probative force.

What is the difference between an amicable inventory and a bailiff's report?

An amicable inventory, drawn up by the parties or a private third party, is merely a private deed (acte sous signature privée). The findings of the commissaire de justice are conclusive until proven otherwise (Article 1 of Ordinance No. 2016-728 of 2 June 2016). This difference in probative force justifies recourse to a commissaire de justice in contentious situations or where significant sums are at stake.

Is a bailiff's report compulsory at the end of the lease?

No, except where the inventory cannot be drawn up jointly and amicably by the parties or by a third party appointed by them: it is then drawn up by a commissaire de justice, at the initiative of the more diligent party (Article 3-2 of the Law of 6 July 1989). Where there are disagreements or significant stakes, a report by a commissaire de justice provides enhanced legal certainty.

Can a bailiff refuse to draw up an inventory report?

The bailiff may refuse the assignment if there is a conflict of interest (family relationship with a party, previous involvement in the same matter) or if the conditions of the visit do not guarantee his independence. He may also make his attendance conditional on payment of an advance on his fees.

How long after the keys are handed back can a bailiff's report be requested?

The report should ideally be drawn up when the premises are vacated, so as to reflect their exact condition when the tenant leaves. A long interval between vacation and the report may undermine its relevance, particularly if further damage occurs in the meantime (theft, vandalism, weather damage).

An end-of-tenancy inventory drawn up by a bailiff is a reassuring investment that often avoids costly and uncertain litigation. Its particular probative force and the technical expertise it brings make it a tool of choice in contentious situations or where significant sums are at stake. Before embarking on this procedure, assess objectively the financial stakes and the risk of litigation to determine whether the cost of the report is justified in relation to the sums involved.