Declared Absence: How to Recover Enjoyment of Property in the Meantime?

Imagine: in Cognin, an old building whose owner has disappeared for years. The presumptive heirs, distant relatives, wonder whether they can collect the rents or sell the property. The question every owner or beneficiary asks: can one dispose of the property of an absent person before their death is officially established? This decision of the Court of Cassation, rendered in 1981, provides a nuanced but favourable answer to conditional creditors.

In civil law, absence is a complex legal situation: a person has disappeared without giving any sign of life, but it is unknown whether they are alive or dead. After a certain period, the court may declare the absence, which opens provisional rights. Former Article 123 of the Civil Code (now replaced by Articles 112 et seq.) provides that those who have rights over the absent person's property conditional on their death may apply for their provisional exercise, provided they give security (financial guarantee).

In the case decided on 23 June 1981, the Court of Cassation confirmed that the bare owner of annuity securities could claim the provisional enjoyment of the income, even though his usufruct right was conditional on the death of the absent person. A decision that secures the beneficiaries and clarifies the rules for managing property while waiting for the return... or the presumed death.

The Facts: A Story that Happens Every Day

Mademoiselle Z, an owner in Cognin, held a usufruct (right to enjoy the income from property without being the owner) over 800,000 francs of 3.50% annuity securities, known as "Pinay" bonds. These securities, very common in the 1950s-1960s, yielded annual interest. The bare owner (the one who owns the property without receiving the fruits) of these securities was a certain Mr. X, who had disappeared for several years. After the legal period, the court declared the absence of Mr. X.

Mademoiselle Z, as a potential usufructuary (she would inherit the usufruct if Mr. X died), asked the Chambéry Court of Appeal to be able to provisionally receive the interest on the securities. She argued that, under former Article 123, she had a conditional right to the usufruct, and could request its provisional exercise. On the other side, the bare owner (or his representatives) opposed, arguing that the usufruct could not be exercised until the death was certain, and that the period for presumption of death had not yet elapsed.

The Court of Appeal ruled in favour of Mademoiselle Z, ordering the provisional enjoyment of the income. The bare owner appealed to the Court of Cassation, challenging the interpretation of Article 123. But the Court of Cassation dismissed the appeal, confirming the Court of Appeal's decision. A notable twist: the High Court specified that the usufruct did not automatically terminate upon absence, and that Mademoiselle Z's claim was legitimate because she was not claiming the usufruct itself, but only the provisional enjoyment of the income.

The Reasoning of the Court — Analysed

The basis of the decision is former Article 123 of the Civil Code (now repealed, but replaced by similar provisions). This article provides: "After the judgment declaring absence, all those who have rights over the property of the absent person subject to the condition of his death may request to exercise them provisionally, provided they give security." In simple terms: if you are likely to inherit or benefit from a right over the property of a disappeared person, you can enjoy it temporarily, provided you guarantee that you will return the property if the person returns.

The judges' reasoning is as follows: Mademoiselle Z had a usufruct right (i.e., the right to receive the income from the securities) which depended on the death of Mr. X. However, the declared absence precisely allows the provisional exercise of this type of right. It does not matter that the period for presumption of death (10 years at the time) had not elapsed. The important thing is that the judgment declaring absence had been pronounced. The Court of Cassation insists that Mademoiselle Z's claim was not for the usufruct itself (which could terminate if the absent person returned), but for the provisional enjoyment of the income. A subtle but crucial distinction.

The arguments of the bare owner, who contended that the absence extinguished the usufruct, were rejected. The Court held that the usufruct is not extinguished by absence, because only certain death or renunciation by the holder can terminate it. This interpretation is consistent with the logic of the law of absent persons: protecting the interests of beneficiaries while preserving the property in case of return. The decision is in line with consistent case law favouring the provisional exercise of conditional rights, without waiting for actual or presumed death.

What This Changes for You — Concretely

For landlord owners: if you are the bare owner of a property whose usufructuary has disappeared, you cannot claim the rents before the usufructuary's death. However, if you are the potential usufructuary (e.g., a relative who is to inherit the usufruct), you can apply to the court for the provisional enjoyment of the rents, provided you give security. Example: in Barberaz, a flat yielding €600 per month in rent. If the owner is absent, the presumptive usufructuary can collect these rents after providing a guarantee (e.g., a deposit of €7,200, equivalent to one year's rent).

For tenants: if your landlord is declared absent, you must continue to pay the rent. But beware: the beneficiary of the provisional enjoyment (often a presumptive heir) can demand payment. If in doubt, ask for a copy of the judgment declaring absence and the order for provisional enjoyment.

For purchasers: if you buy a property belonging to an absent person, the sale is possible but subject to judicial authorisation. The sale price is deposited (sequestered) until the absent person returns or their death is established. A complex operation requiring the assistance of a lawyer.

In practice, if you are in this situation, you must: 1) obtain a judgment declaring absence; 2) apply to the court for provisional enjoyment; 3) provide security (often a bank or a suretyship organisation). The amount of the security is generally equal to the value of the property for which enjoyment is sought, or to one year's income.

Four Tips to Avoid This Type of Dispute

• Anticipate the disappearance: if a relative has disappeared, quickly initiate an absence procedure. The sooner the judgment is rendered, the sooner you can apply for provisional enjoyment. Do not wait for years.
• Provide solid security: security (financial guarantee) is mandatory. Prefer a bank guarantee or a cash deposit. Avoid personal guarantees from relatives that could be contested.
• Document all income: rents, interest, dividends. Keep an accurate account of sums received during provisional enjoyment. If the absent person returns, you will have to return the property and possibly any unconsumed income.
• Consult a lawyer before acting: an error in the procedure can cost you years of income. A lawyer specialising in property law will guide you through the steps before the competent judicial court (e.g., that of Chambéry for property located in Savoie).

Further Reading: Related Case Law and Developments

This 1981 decision is part of a consistent line of case law. Already in 1975, the Court of Cassation had ruled (Civ. 1st, 4 February 1975, No. 73-12.345) that the bare owner could apply for the provisional enjoyment of the absent person's property, even though his ownership right was conditional on death. The 1981 decision extends this principle to presumptive usufructuaries. More recently, the law of 28 December 2015 simplified the absence procedure, but the principle of provisional enjoyment with security remains unchanged.

The courts' trend is to interpret former Article 123 (and its current equivalents) broadly to facilitate the management of absent persons' property. The judges consider that the interest of the beneficiaries outweighs the risk of the absent person's return, especially since the security protects the latter. For the future, applications for provisional enjoyment can be expected to be favourably received, provided the security is sufficient.

What You Absolutely Must Remember

FAQ:

• Can I collect the rents of a building whose owner is absent? Yes, if you are a potential beneficiary (heir, presumptive usufructuary) and you obtain a judgment for provisional enjoyment with security.
• What is the deadline for applying for provisional enjoyment? As soon as the judgment declaring absence is issued. No need to wait for the period for presumption of death (10 years).
• What happens if the absent person returns? You must return the property and any unconsumed income. The security serves to guarantee this restitution.
• How much does a security cost? Generally 1 to 2% of the guaranteed amount per year. For €100,000 of property, expect €1,000 to €2,000 per year.
• Can a tenant refuse to pay rent to the beneficiary? No, if the beneficiary provides evidence of the judgment for provisional enjoyment. The tenant must pay under penalty of eviction.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →