Preferential agricultural allocation: what area counts?

Imagine: you own a house with land in Antibes, and you also farm a few agricultural plots nearby. One day, a co-heir or co-owner demands their share, and you wish to keep the whole to continue your activity. The question that then arises is crucial: how much land will you be able to keep? How far does the law protect you?

This question is asked every year by hundreds of owners and farmers. Article 832 of the Civil Code provides a right of preferential allocation in favour of the farmer, but its practical application raises difficulties. Particularly on one specific point: how to calculate the area of the farm? Should only the undivided plots subject to the application be taken into account, or also those that the candidate already owns outright?

This is exactly the question answered by the Court of Cassation in a judgment of 22 March 2018 (No. 16-24.052). And the answer is clear: the area to be considered is that of the undivided plots subject to the application, added to that which the candidate owned. In other words, the two are added together. But what exactly does that change? Let's dive into the facts.

The facts: a story like any other

Mr X, a farmer in Antibes, had been farming a group of plots in the communes of Antibes and Mougins for years. He was in co-ownership with his brothers and sisters following the death of their parents. The co-ownership included in particular:

• a group of plots located in the commune of Antibes, with a total area of 15 ha 50 a 90 ca;
• another group of plots located in the hamlet of Mougins, of 69 a 68 ca;
• other assets, including two dwelling houses.

Wishing to maintain his farm, Mr X applied for the preferential allocation of all the undivided plots, on the basis of Article 832 of the Civil Code. This provision allows a co-heir (or co-owner) who farms agricultural assets to have them allocated to them as a priority during the partition, subject to paying a compensatory payment (soulte) to the others.

But his brothers and sisters opposed it. Their main argument: Mr X already owned, in his personal capacity, other agricultural plots. According to them, to assess whether the farm had a sufficient area to be preferentially allocated, these personal plots had to be taken into account. By adding these areas, the total area exceeded the legal threshold (variable by department, but often around 10-15 hectares), which, in their view, made the preferential allocation impossible.

The case was brought before the courts. The Aix-en-Provence Court of Appeal ruled in favour of the brothers and sisters, holding that the area to be taken into account was that of the undivided plots plus those owned by Mr X. Mr X then appealed to the Court of Cassation.

The reasoning of the court — dissected

The Court of Cassation upheld the appeal judgment. It recalls that, according to Article 832 of the Civil Code, preferential allocation may be requested for any agricultural asset, provided that the farm has a sufficient area. But how is this area determined? The Court specifies: "the area of the farm to be taken into consideration for the purpose of the preferential allocation as of right under Article 832 of the Civil Code is that of the undivided plots subject to the application, added to that which the candidate owned".

In clear terms, it is not only the undivided land, but all the land farmed by the applicant, whether owned outright or in co-ownership. This reasoning is based on the idea that the preferential allocation aims to preserve the economic unity of the farm. If the candidate already owns land outright, that land forms an integral part of his farm.

However, note: the decision states clearly that it is the area farmed by the candidate, not all the land he owns. If some personal plots are rented to a third party, they are not taken into account. In this case, Mr X farmed all his land himself.

What few people know is that this interpretation is not new. The Court of Cassation had already ruled in a similar sense (Civ. 1st, 13 November 2008, No. 07-18.992). But the 2018 judgment confirmed and clarified the rule, leaving little room for doubt.

Mr X's arguments were nevertheless admissible. He argued that Article 832 aims to protect the farmer, and that taking his personal land into account could penalise him. But the Court considered that the purpose of the provision is to maintain a viable farm as a whole. If the applicant already owns land, it is not necessary to allocate all the undivided plots to ensure viability.

What this changes for you — concretely

This decision has direct implications for farmers, but also for landowners, heirs and co-owners. Here is what you need to remember depending on your situation.

For the farmer applying for preferential allocation: before applying, you must calculate the total area of your farm, adding together the undivided plots (subject to the application) and those you already own. If this area exceeds the threshold set by prefectural decree (variable by department, e.g. 15 hectares in the Alpes-Maritimes), you will not be able to benefit from preferential allocation. Concrete example: in Mougins, if you already own 10 hectares outright and you apply for allocation of 6 undivided hectares, the total is 16 hectares. If the threshold is 15 hectares, your application will be rejected. You will then have to negotiate an amicable partition or go through an auction sale.

For co-owners (brothers, sisters, associates): you can challenge an application for preferential allocation by showing that the candidate already farms other land outright. It is therefore essential to gather evidence of this farming (leases, CAP declarations, cadastral records).

For the non-farming owner: if you are in co-ownership with a farmer, you should know that preferential allocation is not automatic. The candidate must meet area conditions. You can therefore oppose the application if the total area (undivided + personal) exceeds the threshold.

undefined, I have come across cases where farmers were surprised to learn that their personal land was taken into account. They had built up separate land assets, thinking it would increase their chances of obtaining the allocation. Mistake: it can actually penalise them. If you are in this situation, you must check the applicable threshold in your department and calculate your total area before starting proceedings.

Four tips to avoid this type of dispute

• 1. Calculate precisely the total area of your farm: add up all the plots you farm, whether owned outright or in co-ownership. Do not forget land leased or farmed directly. A surveyor or agricultural advisor can help.
• 2. Find out the applicable threshold in your department: each prefecture sets an area threshold for preferential allocation. In Antibes, for example, the threshold is 15 hectares for the Alpes-Maritimes. Check the current prefectural decree.
• 3. Anticipate the partition beforehand: if you know you are in co-ownership, propose an amicable partition of the farm before conflict arises. A co-ownership agreement can set out the terms of farming and avoid surprises.
• 4. Consult a lawyer lawyer before any proceedings: preferential allocation is a technical area. A lawyer will help you assess your chances and prepare your file, especially by gathering supporting documents (leases, cadastral records, CAP declarations).

Further reading: related case law and developments

The 2018 decision is part of a consistent line. Already, in a judgment of 13 November 2008 (No. 07-18.992), the Court of Cassation had held that the area to be taken into account includes the farmer's personal land. However, there was some confusion, with some lower courts sometimes adopting a different interpretation. The 2018 judgment puts an end to these divergences.

Furthermore, the Law of 23 February 2005 on the development of rural territories amended Article 832 to facilitate preferential allocation, but the issue of area remained unchanged. The courts continue to apply strictly the rule of adding areas.

Another interesting decision is that of the Court of Cassation of 10 September 2015 (No. 14-21.720), which clarified that preferential allocation can be requested even if the farmer is not a farmer as his main occupation, provided he actually farms the land. This shows that case law is evolving towards increased protection of the farmer, but within the limits of the area rules.

What this means for the future: farmers must be particularly vigilant about the composition of their farm. The trend is towards a global assessment of the farm, which can work in their favour or against them depending on the case.

Key points to remember

FAQ:

• Q: What is preferential allocation? A: It is a right granted to a co-heir or co-owner who is a farmer to have the agricultural assets of the co-ownership allocated to them as a priority during the partition.
• Q: How to calculate the area? A: Add together the undivided plots subject to the application and those owned outright by the candidate, provided he farms them.
• Q: What happens if the total area exceeds the threshold? A: The preferential allocation is refused. The partition then takes place according to ordinary rules (auction sale or partition in kind).
• Q: Can I challenge a preferential allocation? A: Yes, by showing that the candidate does not meet the conditions, for example if the total area exceeds the threshold or if he does not farm personally.
• Q: Can a part-time farmer benefit from it? A: Yes, if he actually farms the land, even if he has another activity.

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In summary, before applying for preferential allocation, check your total area. And if you are in a dispute, do not hesitate to consult a lawyer lawyer.

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 →