Forfeiture of Usufruct for Failure to Maintain: 19 Years of Abandonment Sanctioned

Imagine: you are the owner of a house in Plougastel-Daoulas, in Finistère. You have granted the usufruct to a relative, who can live in it or rent it out, but he must maintain it. One day, you notice that the roof is collapsing, the walls are cracking, the building is in ruins. For 19 years, the usufructuary has done nothing. What can you do? The question every owner asks: can the usufructuary lose his right for negligence?

The answer is yes, and the Court of Cassation confirmed this in a judgment of 12 March 1970 (No. 68-13.805). This decision, rendered in a Breton case, is still authoritative. It illustrates the seriousness with which judges regard the failure to maintain the main structure (the structural elements of a building: foundations, load-bearing walls, framework, roofing).

But be careful: the forfeiture of the usufruct (the loss of this right) is not automatic. The judges assess the fault sovereignly. In this case, two faults were retained: a failure to maintain for 19 years and a change of use of the property. Analysis.

The facts: a story like any other

In 1946, a widow reserved the usufruct (the right to use and receive income) of a farm located in Landivisiau, a neighbouring town of Plougastel-Daoulas. The bare owner (the one who has the ownership without the usufruct) was her son. The property included a dwelling house and farm buildings.

For 19 years, the usufructuary rented the house to non-agricultural workers, unrelated to the farm operation. During this time, she carried out no maintenance of the main structure. The walls deteriorated, the roof collapsed, the buildings fell into ruins. The bare owner then sued the usufructuary to obtain a declaration of forfeiture of her usufruct.

The case was brought before the Rennes Court of Appeal, which ruled in favour of the bare owner. The usufructuary appealed to the Court of Cassation, arguing that the bare owner also had the obligation to carry out improvement works (works of improvement or consolidation) and that the mere fact of having rented to non-agricultural workers did not constitute a change of use. The Court of Cassation dismissed the appeal, confirming the forfeiture.

The reasoning of the court — analysed

The Court of Cassation examined the single ground of appeal, which had two branches. First branch: the usufructuary argued that the bare owner also had the responsibility to carry out improvement works, and that by failing to do so, he had contributed to the ruin of the buildings. The Court replied that the failure to maintain attributable to the usufructuary for 19 years had alone caused the deterioration of the main structure. It did not matter that the bare owner had obligations: it was the fault of the usufructuary that was the determining cause.

Second branch: the usufructuary contested the change of use. She had rented the house to non-agricultural workers, but the farm tenant (the agricultural lessee) had never used this house for his operation. The Court held that this fact indeed constituted a change of use, because the property was burdened with usufruct (subject to this right) in the context of an agricultural operation. By renting it to non-agricultural third parties, the usufructuary had modified the use of the property, which justified the forfeiture.

The legal basis is Article 618 of the Civil Code (old), which provides that the usufruct may end if the usufructuary commits serious abuses, in particular by damaging the property or diverting it from its intended use. The Court of Cassation recalls that the assessment of the gravity of the fault falls within the sovereign power of the trial judges (the magistrates who judge at first instance and on appeal). Here, the Court of Appeal did not contradict itself by retaining two distinct faults: it simply sovereignly assessed that the overall conduct of the usufructuary was sufficiently serious to justify the forfeiture.

This decision is a confirmation of the constant case law: a prolonged failure to maintain and a change of use can combine their effects to justify the loss of the usufruct. It is neither a reversal nor an evolution, but a firm reminder of the obligations of the usufructuary.

What this means for you — concretely

Owner landlord (bare owner): if the usufructuary neglects maintenance, you can request forfeiture. But be careful: you must prove a serious fault. A simple delay in painting is not enough. It requires a characterised abandonment, as here 19 years without maintenance of the main structure. For example, if the usufructuary leaves a leaking roof for 5 years without reacting, you can act. But if you yourself have not carried out the necessary improvement works, the judge may mitigate the fault of the usufructuary. In this case, the Court dismissed this argument because the fault of the usufructuary was too serious.

Usufructuary: you must maintain the property as a good father of a family (with care and diligence). Routine maintenance (tenant repairs, minor repairs) is your responsibility. Major repairs (roof, load-bearing walls) are the responsibility of the bare owner, but if you do not report damage or if you let the situation deteriorate, you risk forfeiture. For example, in Landivisiau, a usufructuary who leaves a water leak unrepaired for 10 years could lose his right.

Purchaser: if you buy a property burdened with a usufruct, inquire about the state of maintenance. A negligent usufructuary can be deprived, which frees the property. But the procedure is long and costly. It is better to check the maintenance before buying.

Tenant: you are not directly concerned, but if the usufructuary loses his right, your lease may end. In case of forfeiture, the bare owner recovers full ownership and may decide not to renew the lease.

Four tips to avoid this type of dispute

• Tip no. 1: Carry out a joint inventory of condition from the creation of the usufruct. Photograph each room, the walls, the roof. Have it signed by both parties. This will distinguish pre-existing damage from that attributable to the usufructuary.
• Tip no. 2: Include precise clauses in the usufruct deed: maintenance obligations, frequency of visits by the bare owner, prohibition of changing the use without written consent. These clauses will facilitate proof in case of dispute.
• Tip no. 3: For the usufructuary, report any serious problem in writing to the bare owner. For example, if a leak appears on the roof, send a registered letter with acknowledgement of receipt. This way, you prove that you have alerted and that the bare owner has not carried out the major repairs.
• Tip no. 4: For the bare owner, inspect the property regularly (at least once a year). If you notice a lack of maintenance, put the usufructuary on notice in writing. In case of inaction, you will gather evidence for a possible action for forfeiture.

Further reading: related case law and developments

The Court of Cassation has rendered several judgments in the same vein. For example, in a judgment of 8 November 1977 (No. 76-11.852), it pronounced the forfeiture of the usufruct for failure to maintain a dwelling house for 30 years. In another judgment of 13 March 2013 (No. 11-27.810), it recalled that a change of use of the property (converting a dwelling house into commercial premises without consent) can also justify forfeiture.

The trend of the courts is therefore strict: they do not hesitate to remove the usufruct in case of prolonged abandonment or diversion of use. For the future, it is likely that the judges will continue in this direction, especially in a context of valuing real estate assets. Bare owners are increasingly vigilant, and usufructuaries must be aware that their right is not irrevocable.

Checklist before acting

• Have I clearly identified the serious fault of the usufructuary? (prolonged failure to maintain, change of use, abuse of enjoyment)
• Do I have evidence? (photos, bailiff's reports, letters, witness statements)
• Have I fulfilled my obligation for major repairs? (if I am the bare owner, have I carried out the necessary improvement works?)
• Have I attempted an amicable resolution? (notice, mediation)
• Have I consulted a specialist lawyer? (the forfeiture procedure is technical and the deadlines can be long)

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 →