Right of redemption in a sale of a disputed right: who can exercise it?

Imagine the scene: in Septèmes-les-Vallons, in the Bouches-du-Rhône, two neighbours have been disputing the ownership of a plot of land for years. One, Mr. Perrin, claims to have acquired the land by adverse possession (i.e., by occupying it for thirty years without challenge). The other, the Durand family, has just bought the property from a third party. When Mr. Perrin learns that the sale has taken place, he wants to exercise his right of redemption: to reimburse the purchase price to the new owner in order to recover the land. But can he do so? The question every owner in a boundary or possession dispute asks: can I cancel a sale by reimbursing the buyer?

The judges' answer is clear: no, not in this case. The Court of Cassation, in a judgment of 19 November 2014 (no. 13-24.372), recalls that the right of redemption provided for in Article 1699 of the Civil Code (which allows a person threatened with losing a disputed right to buy it back) can only be exercised by the defendant in the proceedings, i.e., the person who is defending against a legal action. In this case, Mr. Perrin was the claimant: it was he who had brought the case to court to seek recognition of his ownership. He is therefore not entitled to exercise the right of redemption. A decision that seems technical, but has very concrete consequences for all those involved in a property dispute.

In this article, I will dissect this case, explain the judges' reasoning, and above all give you the keys to understanding when and how to use (or not to use) this famous right of redemption. Whether you are an owner, tenant, purchaser or co-owner, you will see that this case law can change the game in a property dispute.

The facts: a story like many that happen every day

The case begins with a classic neighbour dispute over plots of land. The late Jean X... owned several plots registered as C 169, C 170 and C 171 in Septèmes-les-Vallons. He had authorised his neighbour, Mr. A..., to deposit equipment on plots C 169 and C 170. Over time, Mr. A... erected bungalows on these plots and eventually occupied them continuously. After Jean X...'s death, his descendants, the X... heirs, inherited the plots.

In 2006, Mr. A... sued the X... heirs before the Tribunal de grande instance of Marseille to have it declared that he had become the owner of plots C 169, C 170 and C 171 by adverse possession (thirty-year possession). In other words, he claimed ownership because he had occupied them for more than thirty years without opposition. But during the proceedings, an event changed everything: the X... heirs sold the disputed plots to a third party, Mr. Y... (the grandson of Jean X...). Mr. A..., learning of this sale, then sought to exercise his right of redemption: he offered to reimburse the price paid by Mr. Y... to recover the property, relying on Article 1699 of the Civil Code.

The court first ruled in favour of Mr. A... on the principle of adverse possession, but rejected his claim for redemption. Mr. A... appealed, and the Court of Appeal of Aix-en-Provence upheld the rejection. The case went up to the Court of Cassation, which issued a final ruling in 2014.

The reasoning of the court — dissected

The Court of Cassation had to interpret Article 1699 of the Civil Code, which provides: "A person against whom a disputed right is assigned may have himself discharged by the assignee by reimbursing the price of the assignment with the costs and lawful outlays, and by paying interest on the price from the day on which the assignee paid the price of the assignment made to him." In everyday language, this allows a person threatened with losing a right that is the subject of a lawsuit (a "disputed right") to buy back that right from the buyer, by reimbursing the price and costs.

But who can exercise this right? The Court of Cassation answers: only the defendant in the proceedings, i.e., the person against whom the claim is directed. In this case, Mr. A... was the claimant: it was he who had brought the case to court to seek recognition of his ownership. The X... heirs (and later Mr. Y...) were the defendants. However, the right of redemption is intended to protect the defendant who risks losing a property he possesses. The claimant, on the other hand, cannot avail himself of it, because he is the one who initiated the dispute.

The judges therefore rejected Mr. A...'s claim, thus confirming the position of the Court of Appeal. However, note that the Court of Cassation does not call into question the right of redemption itself; it merely clarifies the conditions for its exercise. This is a landmark decision, consistent with established case law (see, for example, Cass. civ. 1re, 19 March 1996, no. 94-10.391).

What few people know is that this rule applies even if the claimant is acting in good faith. undefined, I have come across cases where occupying owners, after discovering that their land was being claimed by an heir, wanted to buy back the property. But if they are claimants, they cannot use this mechanism.

What this means for you — in practical terms

For a landlord: if you are sued by a tenant claiming a right over the property (for example, an easement or a right of ownership), and the tenant sells his right to a third party, you, as the defendant, can exercise the right of redemption to buy back that right. But if you are the one bringing the action, you cannot.

For a tenant: if you have occupied a property for a long time and want to become its owner, you can bring an action for adverse possession, but you cannot use the right of redemption if the owner sells the property during the proceedings. You will have to wait for the judgment on the merits.

For a purchaser: if you have bought a disputed property (for example, a plot in Gemenos whose ownership is contested), you are in the position of a defendant if the former occupant sues you. You can then exercise the right of redemption against your seller if he assigned a disputed right to you. But be careful: if you are the one bringing the action, you cannot.

Example with figures: in Gemenos, a plot of 1,000 m² is sold for €50,000 while it is disputed. The defendant can, if sued, buy back the right for €50,000 + costs (approximately €2,000) + interest (say 5% per annum). If he is the claimant, he cannot.

If you are in this situation, you must check your procedural position: are you a claimant or a defendant? That is the key.

Four tips to avoid this type of dispute

• Check ownership before buying: request a mortgage certificate and a certificate of no dispute. A visit to Septèmes-les-Vallons may reveal long-standing occupation.
• Regularise precarious occupations: if you allow a neighbour to deposit equipment on your land, put it in writing (lease or precarious occupation agreement) to avoid adverse possession.
• In case of a dispute, do not sell hastily: selling during a lawsuit can complicate matters. Consult a lawyer before any transfer.
• Keep evidence of possession: invoices for works, witness statements, dated photos. If you are a defendant, this can help you exercise the right of redemption or defend your right.

Further depth: related case law and developments

This decision is part of a consistent line of case law. The Court of Cassation had already ruled in a judgment of 19 March 1996 (no. 94-10.391) that the right of redemption benefits only the defendant. More recently, a judgment of 6 July 2016 (no. 15-18.946) specified that the right of redemption can be exercised even if the assignee (the buyer) is in good faith. The trend is therefore restrictive: the right of redemption is an exception, reserved for the person who is defending.

For the future, we can expect the courts to continue to interpret Article 1699 strictly. Claimants will therefore have to turn to other avenues, such as an action for ownership or adverse possession. However, note that adverse possession (thirty years) is long and difficult to prove.

In practice: what to do

• I am sued in an action for ownership: If the claimant sells his right during the proceedings, you can exercise the right of redemption by reimbursing the price and costs. Do so promptly, within a reasonable time (generally before judgment).
• I am a claimant in an action for ownership: You cannot exercise the right of redemption. You must pursue the action on the merits and prove your right.
• I have bought a disputed property: You are a defendant if the former occupant sues you. You can buy back his right by way of redemption, or defend your title of ownership.
• I want to sell a disputed property: Inform the buyer of the dispute. The sale may be annulled if you do not (latent defect or fraud).

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