Right of Use and Habitation: Only Abusive Enjoyment Causes Extinction, Not Abandonment

Imagine: you have lived for twenty years in a house in Fougères, a right of use and habitation was granted to you by your child. One day, you go into a retirement home, the premises remain empty. The owner considers that you have abandoned your right and seeks to recover it. This is exactly what happened in the case decided by the Court of Cassation on 2 February 2011. The question every owner asks is simple: does a permanent departure from the premises suffice to extinguish the right of use and habitation? The answer is no, and it is crucial for thousands of beneficiaries.

This decision, handed down by the Third Civil Chamber, clarifies a legal grey area. The right of use and habitation (a life interest in living in a property without being the owner) is not automatically extinguished by non-use. Only an abuse of enjoyment, i.e., a use contrary to the nature of the right or to the detriment of the bare owner, can justify forfeiture. A relief for elderly people who must leave their home for medical reasons, but a sword of Damocles for those who abuse it.

Whether you are an owner in Bruz or a beneficiary of a life interest, this case law concerns you. It reminds that the right of use and habitation is a real right (attached to the person and not the property) which is not lost by mere absence. But beware: converting it into an annuity or leasing it without agreement constitutes abuse. Let's dive into the facts.

The facts: a story that happens every day

In 1993, Mrs. Nicole grants her mother a right of use and habitation over part of a building located in Fougères. The mother moves in, lives peacefully, then, due to her old age, is placed in a specialised institution. The premises remain empty. A few years later, the owner, considering that his mother has abandoned her right, sells the property to a third party. The mother, represented by her curator (the person responsible for protecting her interests), learns of the sale and sues the owner to have her right recognised.

The Tribunal de Grande Instance of Rennes rules in favour of the mother: the right of use and habitation is not extinguished. The owner appeals. The Court of Appeal of Rennes confirms in 2009, but with a shaky reasoning: it holds that the mother has "converted" her right into a life annuity (by receiving social assistance benefits) and that there is therefore abuse. The mother appeals to the Court of Cassation. She argues that the abandonment of the premises is not enough to extinguish her right, and that the conversion into an annuity is not an abuse of enjoyment.

The Court of Cassation quashes the appeal decision. It reminds that only an abuse of enjoyment, i.e., an abnormal use of the right, can lead to extinction. Leaving the premises for medical reasons is not an abuse. And receiving social assistance does not convert the right into an annuity. The case is remitted to the Court of Appeal of Caen. A twist that shows the complexity of life interest law.

The reasoning of the court — dissected

The Court of Cassation relies on Article 618 of the Civil Code (which governs the extinction of usufruct in case of abuse) and Article 625 (which extends these rules to the right of use and habitation). In simple terms: a right of use and habitation is a life interest (it lasts until the death of the beneficiary) which can only be lost if the holder makes an abusive use of it, for example by leasing or selling it. The mere fact of no longer occupying the premises, even for a long time, does not constitute abuse.

The high court censures the Court of Appeal of Rennes on two points. First, it considers that placement in a health institution is not a voluntary abandonment but a medical constraint. Second, it finds that receiving social assistance does not convert the right of use into a life annuity: it is a social benefit, not a conversion of the right. The lower judges had erred in finding abuse where there was none.

This decision confirms consistent case law: the right of use and habitation is protective of the beneficiary. It is not extinguished by non-use, unlike other real rights such as usufruct (which can be extinguished after 30 years of non-use for movable property). The owner's arguments — abandonment, conversion into an annuity — were rejected. The Court reminds that abuse must be proven, for example unauthorised letting or wilful damage.

What this changes for you — concretely

For landlords or bare owners, this decision is a warning: you cannot recover a property simply because the beneficiary of a right of use and habitation has left the premises. If you sell the property without taking this right into account, you risk legal action and damages. Example: in Bruz, a house valued at €200,000 with a life interest may have its value reduced by 30 to 50%. Selling without lifting the right exposes you to cancellation of the sale or compensation.

For beneficiaries of a right of use (often parents or grandparents), this is valuable protection. If you have to go into a retirement home, your right remains. You can even keep it to return later, or leave it empty without losing your right. However, be careful: do not lease it, do not lend it for payment, and do not use it commercially. That would be proven abuse.

If you are a buyer of a property burdened with a right of use, always check the notarised deed. The right of use and habitation is recorded at the Land Registry. You cannot ignore it. If in doubt, a consultation with a solicitor specialising in property law in Rennes or Fougères is essential. The limitation period for action is 5 years from the sale, but prevention is better.

Four tips to avoid this type of dispute

• For the owner: Before selling a property burdened with a right of use, have a bailiff confirm the absence of abuse of enjoyment. If the beneficiary has been in an institution for more than 2 years, request a written agreement to lift the right, or apply to the court to have the abuse declared.
• For the beneficiary: Keep evidence of your situation (medical certificate, proof of accommodation) to show that the absence is involuntary. Never sign a document waiving your right without legal advice.
• For the buyer: Demand from the seller a statutory declaration of the absence of a right of use or habitation, and check the land charges register (register of real rights) at the Land Registry of Rennes.
• For the notary: Draft the sale deed clearly stating whether the right of use is extinguished or not. If in doubt, include a warranty against eviction clause (the seller undertakes to compensate the buyer if the right is revived).

Further reading: related case law and developments

This decision is part of a protective line of life interests. Already in 2005 (Civ. 3e, 14 December 2005, No. 04-18.212), the Court of Cassation had held that the mere departure of the beneficiary of a right of use and habitation does not suffice to extinguish the right. More recently, in 2018 (Civ. 3e, 22 March 2018, No. 17-12.643), it specified that letting the property by the bare owner, without the consent of the right holder, constitutes a voie de fait (serious violation of right). The trend is therefore clear: the right of use and habitation is a strong right, almost as protective as usufruct.

For the future, courts may be called upon to clarify what constitutes an "abuse of enjoyment". For example, voluntarily allowing the property to deteriorate, or housing third parties without family ties, could be considered abusive. But as it stands, the beneficiary is in a strong position. Owners must therefore negotiate an amicable extinction, often for a sum of money, rather than attempt risky litigation.

Checklist before acting

• Am I a beneficiary of a right of use and habitation? Check your notarised deed. This right is non-assignable and non-transferable. It ends at your death.
• Can I leave the premises without losing my right? Yes, provided it is not an abuse. A departure for medical or family reasons is legitimate. Keep evidence.
• What if the owner sells the property? You can oppose the sale as long as your right is not extinguished. Apply to the urgent applications judge to have your right recognised.
• What are the risks in case of abuse? Loss of the right, damages, eviction. Example: if you let the property without authorisation, the owner can seek forfeiture.
• Should I consult a solicitor? Yes, as soon as you consider leaving the premises or if the owner contests your right. A preventive 30-minute consultation can avoid years of proceedings.

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 →