Preferential Allocation: When Can the Bare Owner Heir Claim the Agricultural Holding?

Imagine yourself in Tarnos, in the Landes, owner of a family agricultural holding passed down through several generations. Your father passes away, leaving behind this land that has nourished your family. But here's the catch: he had established a gift with reservation of usufruct (a division of property where he retains the use and fruits of the asset, while you have the bare ownership, meaning the right to dispose of the asset in due course). You have worked this holding for years, you are attached to it. Can you claim full ownership during the succession partition?

This question is asked by hundreds of owners each year in the jurisdiction of Mont-de-Marsan, where agricultural and forestry holdings are numerous. Between Biscarrosse and Tarnos, successions can quickly become legal puzzles when the complexity of property division is added.

The Court of Cassation has just provided a clear answer in a judgment of 30 April 2025. But what exactly does this change for you, as an owner, heir, or real estate professional? Let's delve into this decision that will mark succession law and agricultural property law.

The Facts: A Story That Happens Every Day

Mr. Dupont, owner of a 15-hectare agricultural holding near Biscarrosse, passes away leaving three children. The story begins like so many others in our region. But here's the particularity: a few years before his death, Mr. Dupont had made a partition gift (an act allowing the transfer during one's lifetime of all or part of one's assets) in favour of his children, with reservation of usufruct. Concretely, his children became bare owners (holders of the right to dispose of the asset in due course) while Mr. Dupont retained the usufruct (the right to use the asset and receive its fruits).

Among the three children, one of them, Pierre, had been actively working on the holding for over ten years. He had invested time, money, and passion. Upon his father's death, Pierre naturally wished to continue the agricultural activity. He therefore requested preferential allocation (the right to obtain an asset preferentially during a partition) of the holding during the succession partition.

But his two siblings opposed this. Their argument? Pierre was only a bare owner, and preferential allocation could only apply to what he already owned: the bare ownership. They believed that Pierre could not claim full ownership (the entirety of property rights combined) without their agreement.

The Tribunal de Grande Instance of Mont-de-Marsan initially ruled in favour of Pierre, considering that his involvement in the holding justified allocation in full ownership. But the Court of Appeal of Pau overturned this decision. The appeal judges considered that preferential allocation could only apply to rights existing in the co-ownership (the situation where several persons own the same asset). However, in this case, the co-ownership concerned only the bare ownership, since the father's usufruct had extinguished upon his death.

Pierre then lodged an appeal to the Court of Cassation, arguing that Articles 831 and 833 of the Civil Code gave him the right to preferential allocation of the holding in its entirety. It is this case that led to the decision of 30 April 2025.

The Court's Reasoning — Analysed

The Court of Cassation, our highest judicial court, examined this case with full legal rigour. The magistrates recalled the basic principle: preferential allocation is a modality of partition. In other words, it is part of the process of dividing the assets of a succession.

The legal basis is found in Articles 831 and 833 of the Civil Code. Article 831 provides that any heir may request preferential allocation of an undivided asset (shared between several persons) subject to payment of compensation (i.e., with financial compensation to the other heirs) if they justify a legitimate interest. Article 833, more specific, concerns agricultural enterprises: any heir who participates or has participated effectively in the exploitation may request preferential allocation.

But here is the crucial point that the Court emphasised: this allocation, as a modality of partition, can only apply to rights included in the co-ownership to be partitioned. In plain terms, you can only request to obtain by preferential allocation what already forms part of the assets to be partitioned.

In Pierre's case, the co-ownership concerned only the bare ownership of the holding. Why? Because during the gift with reservation of usufruct, the children had only received the bare ownership. Upon the father's death, his usufruct extinguished, and full ownership automatically reconstituted in favour of the bare owners. But this reconstitution did not create a new co-ownership over the full ownership: it simply made the division disappear.

The Court therefore rejected Pierre's appeal. Its decision clearly establishes: "if co-ownership exists only in bare ownership, the co-owner in bare ownership can only be admitted to request an allocation in bare ownership". This is not an evolution in case law, but rather a confirmation and clarification of a principle often misunderstood.

The parties' arguments were classic. Pierre argued that his work on the holding justified allocation in full ownership, invoking the spirit of the texts which aim to preserve the unity of agricultural holdings. His siblings responded that the law is formal: one can only allocate by preference what is in the co-ownership. The Court agreed with this second, stricter reading.

What This Changes for You — Concretely

But what does this mean for you, as an owner, heir, or real estate professional in the Landes? Let's take concrete examples.

If you are a bare owner heir of an agricultural holding, like Pierre, this decision limits your possibilities. You can only request preferential allocation in full ownership if the co-ownership concerns full ownership. Otherwise, you will have to settle for bare ownership, or negotiate with the other heirs to obtain full ownership in exchange for compensation.

Imagine a holding in Biscarrosse worth €300,000 in full ownership. If you are a bare owner at 50% (the value of bare ownership typically represents 60% to 80% of full ownership, depending on the usufructuary's age), you can only claim by preferential allocation this bare ownership. To obtain full ownership, you will need to pay compensation to the other heirs. Concretely, if the bare ownership is worth €180,000 (60% of €300,000), you will need to compensate the other heirs for the remaining €120,000.

If you are a landlord owner who has established a division, this decision reassures you: your heirs will not easily circumvent your wishes. If you have given bare ownership to certain children while retaining usufruct, they will not be able to obtain full ownership by preferential allocation without the agreement of the other heirs.

If you are a notary or lawyer in property law, this decision clarifies your advice. You now know that you must verify the exact nature of the co-ownership before advising a request for preferential allocation. undefined in Mont-de-Marsan, I have encountered cases where this confusion between bare ownership and full ownership has generated lasting family conflicts.

If you are a potential purchaser of an agricultural holding, be vigilant: check whether the seller is in co-ownership and which rights this co-ownership concerns. A sale by a bare owner alone could be contested if the other heirs invoke their right to preferential allocation over the bare ownership.

Four Tips to Avoid This Type of Dispute

• Anticipate the transmission: If you own an agricultural holding, think now about how you wish to transmit it. A gift with reservation of usufruct can be interesting tax-wise, but it complicates the subsequent partition. Consult a notary or specialised lawyer to study alternatives.
• Clarify co-ownership situations: During a succession, have a precise statement of each person's rights established. Is it a co-ownership over full ownership or only over bare ownership? This distinction is crucial to determine possibilities for preferential allocation.
• Document participation in the holding: If you work on a family holding and wish one day to request preferential allocation, keep all evidence of your involvement: employment contracts, investment invoices, testimonies. This will strengthen your case even if your rights are limited to bare ownership.
• Prioritise family negotiation: Before initiating legal proceedings, attempt mediation or negotiation between heirs. Often, an amicable solution is quicker, less costly, and preserves family relationships. In the jurisdiction of Mont-de-Marsan, mediators specialised in rural law can assist you.

Deep Dive: Related Case Law and Evolutions

This decision fits within consistent case law of the Court of Cassation. Already in 2018 (judgment no. 17-14.316), the Court had recalled that preferential allocation could only apply to rights existing in the deceased's estate. But the specificity of the 2025 judgment is its application to the particular case of agricultural holdings and property division.

A prior decision of the Court of Appeal of Bordeaux (2022) had already addressed this question in a similar case concerning a forestry property in the Landes. The Bordeaux judges had then considered that the bare owner heir could only obtain by preferential allocation the bare ownership. The Court of Cassation therefore confirms this orientation.

What few people know is that this case law also protects the other heirs. By limiting preferential allocation to rights existing in the co-ownership, it prevents an heir from appropriating rights that do not yet belong to them. It is a strict application of the principle that one cannot give more than one has.

For the future, this decision will likely encourage owners to better structure their transmissions. One can anticipate development of succession pacts (agreements in advance on the partition of a succession) and more precise gifts to avoid disputes. In a region like the Landes, where property and agricultural heritage is significant, this clarification is welcome.

Checklist Before Acting

You find yourself in a similar situation? Here is what to verify before acting:

1. Identify the nature of your rights: Are you a bare owner, usufructuary, or full owner? Consult the gift deed or title of ownership.
2. Analyse the co-ownership: Which rights does the succession co-ownership concern? Full ownership or only certain divided rights?
3. Assess your participation: If you request preferential allocation of an agricultural holding, can you prove your effective participation in its exploitation?
4. Calculate compensations: If you cannot obtain full ownership by preferential allocation, are you prepared to pay compensation to the other heirs? Do you have the financial means?
5. Consult a professional: Before any steps, seek advice from a notary or lawyer specialised in rural and succession law. One hour of consultation can save you years of proceedings.

You find yourself 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 →