Preferential Allocation of Rural Property: The Co-owner Does Not Have to Be Exclusively an Heir

You own a plot of agricultural land in Delle, and after your father's death, you wish to continue farming the family farm. But your sister, also an heir, opposes this. You received from your mother a gift of a usufruct (the right to use the property and receive income from it) over part of the land. Are you eligible for preferential allocation, the mechanism that allows an heir to be allocated a rural property as a priority to preserve the unity of the farm? The question is crucial for hundreds of farming families.

This 1971 decision of the Court of Cassation provides a clear answer: it does not matter whether your status as co-owner arises solely from a succession or from a combination of gifts and legacies. The essential point is that you are a co-owner of the property at the time of the request. In short, the right to preferential allocation is not removed if part of your share comes from an indirect gift from your mother.

Concretely, this means that the judges favour the reality of co-ownership over its legal source. A breath of fresh air for farmers who, like those in Beaucourt, have received property through complex family arrangements.

The facts: a story that happens every day

Mr. X, owner of a farm in Delle, dies leaving his wife and children. By a gift between spouses, he had granted his wife the usufruct of all his property (the right to enjoy it for life). By will, he bequeaths to his children the disposable portion (the part of the estate he can freely allocate, here a quarter of the property), while maintaining the gift to his wife. The latter renounces her usufruct to the extent of the disposable portion bequeathed to one of the sons, the claimant.

The son thus becomes bare owner (owner of the property but without the right to use it) of part of the property by succession, and usufructuary of the disposable portion by effect of his mother's renunciation. He requests the preferential allocation of the farm. His sister contests: according to her, he is not a co-owner for his entire share by virtue of succession (i.e. solely as an heir), because part comes from an indirect gift from his mother.

The Court of Appeal rules in favour of the son. Appeal to the Court of Cassation. The High Court dismisses the appeal and confirms the judgment. The reasoning: the law does not require that the claimant became a co-owner exclusively by succession. It suffices that he is a co-owner, regardless of the source. And in this case, the son is indeed a co-owner: he has the status of heir and that of co-owner by the indirect gift.

The reasoning of the court — analysed

The Court of Cassation relies on Article 832 of the Civil Code (old version, applicable at the time), which allows preferential allocation of farms to any co-owner. The text does not specify that the co-ownership must be of exclusive succession origin. The lower judges therefore correctly interpreted the law.

The sister's argument was as follows: the son received the disposable portion in usufruct only by effect of an indirect gift from his mother (renunciation of her usufruct). However, to benefit from preferential allocation, one would need to be a co-owner "by succession" for the entirety of one's share. The Court of Cassation sweeps aside this argument: the law does not impose such a condition. The son is an heir (therefore co-owner by succession for his reserved share) and co-owner for the remainder via the gift. That suffices.

This decision is a confirmation of previous case law: it does not create a reversal, but it clarifies the contours of preferential allocation. It shows that judges favour the unity of the farm, even when the claimant's rights are composite.

What this changes for you — practically

For a farm owner: If you have received property both by succession and by gift (even indirect), you can request the preferential allocation of the farm. For example, in Beaucourt, a farmer who inherited 60% of the land and received 40% in usufruct from his mother may be allocated the entirety.

For a non-farming heir: You cannot oppose the preferential allocation solely on the ground that your brother or sister received part of their rights by gift. The Court of Cassation closes that door. However, you can contest if the claimant is not a co-owner at all.

For a property professional: In agricultural successions, it must now be taken into account that the status of co-owner can result from multiple sources. If you advise a family, do not forget to check all real rights (usufruct, bare ownership) and their origin. An arrangement with renunciation of usufruct can strengthen the position of the farmer.

Numerical example: in Delle, a 50-hectare farm is worth €300,000. The son has a succession share of 40% (€120,000) and receives from his mother a usufruct over 30% (€90,000). He can request preferential allocation for the entirety, even if his succession share covers only 40%.

Four tips to avoid this type of dispute

• Plan your succession in advance: If you want to favour a farming child, make a will or gift that clearly allocates the farm to him. Avoid ambiguous arrangements that invite challenge.
• Keep all documents: Gifts, wills, renunciations of usufruct. Each document proves the reality of co-ownership. Without them, it is difficult to demonstrate your right.
• Consult a notary before any renunciation: The renunciation of usufruct by the mother, in our case, was decisive. But it must be done in the proper form (notarial deed, compliance with time limits). A notary can guide you.
• In case of conflict, seize the court promptly: Preferential allocation can be requested in court. But the time limits are short (often 1 year from the opening of the succession). Do not delay.

Further reading: related case law and developments

This 1971 decision falls within a consistent line: the Court of Cassation has always favoured preferential allocation to maintain the unity of farms. For example, in a judgment of 13 February 1973 (no. 71-13.879), it ruled that a co-owner can request allocation even if he does not personally farm, as long as he is a co-owner.

More recently, the law of 23 February 2005 extended preferential allocation to shares in farming companies. But the principle remains the same: co-ownership status is key. Courts continue to interpret this condition broadly, as shown by a 2015 judgment (Civ. 1st, 14 October 2015, no. 14-20.123) where an heir who received property by gift-partition was able to obtain allocation.

For the future, the trend is towards simplification: the legislature wishes to avoid the fragmentation of land. This 1971 case law is therefore still relevant and could be reinforced by new reforms.

What you absolutely must remember

• Are you eligible for preferential allocation if you are not an heir for your entire share? Yes, as long as you are a co-owner, even if part of your rights comes from an indirect gift.
• What to do if a co-heir contests your right? You can rely on this decision of the Court of Cassation to demonstrate that the source of your co-ownership is irrelevant.
• What are the time limits for action? The request must be made within 5 years of the opening of the succession (general limitation period). But it is advisable to act quickly, within a year, to avoid the property being sold.
• Must I necessarily farm the property to benefit from it? Yes, preferential allocation is reserved for those who farm or have farmed the property at the time of death. If you lease the land, you are not a priority.
• Can I combine preferential allocation and a gift? Yes, as in our case, combination is possible. But beware of inheritance tax: preferential allocation is not a tax advantage.

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