Right of Use and Occupation: What Happens When the Holder Dies?

Imagine the scene: in Villeneuve-lès-Avignon, a family has occupied a flat for years under a right of use and occupation. The holder dies. His children, thinking they can stay, refuse to leave. The owner wants to recover his property to sell or let it again. Who is right? The answer is clear: the right of use and occupation expires with its holder. And the heirs cannot even invoke a right of retention (keeping the property until they have been reimbursed certain sums). This is what the Court of Cassation decided in a judgment of 24 February 1987.

This decision is a blow for many occupants who thought they were protected. But it is also a relief for owners who fear never recovering their property. So, what does the law say in practice? And how to avoid ending up in this deadlock?

This article analyses for you the judgment No. 85-13.682, its facts, its reasoning, and especially what it changes in your daily life, whether you are an owner in Nîmes, a tenant in Le Vigan, or a property professional in PACA.

The facts: a story like many that happen every day

The case begins with a townhouse located in Neuilly-sur-Seine. In 1961, a lady, Mrs Rolland Max Y..., sold her right of usufruct (the right to use a property and receive its income, without being the owner) over this building. The notarial deed provided for a life annuity (a sum paid periodically until the seller's death). Later, a certain Hubert Z... was granted a right of use and occupation (a more limited right than usufruct: it only allows living in the dwelling, without letting or selling it) over the same building.

Hubert Z... dies. His universal legatee (the person designated in his will to receive all his property) moves into the townhouse and refuses to leave. The owner of the building, who is also a debtor of the estate (he must reimburse certain sums to the heirs), demands the occupant's eviction.

The universal legatee defends himself: he invokes a right of retention (the right to keep the property until the owner has reimbursed him for sums due under the life annuity). The Court of Appeal, in summary proceedings, orders his eviction. The legatee appeals to the Court of Cassation.

The legal issue is clear: is the right of use and occupation transmissible to heirs? Can the legatee rely on a right of retention over the building? The Court of Cassation answers both questions in the negative.

The reasoning of the court — analysed

The Court of Cassation relies on Article 625 of the Civil Code (predecessor of the current Article 625, but the principle is the same): "The right of use and occupation expires on the death of the user or occupant." In other words, this right is personal: it is attached to the person of the holder, not to the property itself. Therefore, on death, the right disappears. Full stop.

But the case does not stop there. The universal legatee argued that he could exercise a right of retention over the building, under Article 2402 of the Civil Code (which allows the usufructuary or his heirs to retain the property until the bare owner has paid them certain sums). The Court dismisses this argument: the right of use and occupation is assimilated to a usufruct for the application of this text, certainly. But since this right was extinguished on death, the legatee was never the holder of the right of use. He cannot therefore exercise a right of retention attached to it.

The lower courts (the Court of Appeal) were therefore right to order eviction. The legatee was an occupant without any right or title (without any legal or contractual right to occupy the dwelling). The Court of Cassation confirms the reasoning: no transmissible right of use, no possible right of retention.

This decision is a strict application of the principle of extinction of the life interest on the death of the holder. It reminds us that personal real rights (like usufruct, use, occupation) are not transmitted to heirs, except by legal exception (for example, if the surviving spouse benefits from a temporary right of occupation).

What this changes for you — concretely

If you are an owner (in Nîmes or elsewhere): you can recover your property as soon as the holder of the right of use dies. No need to wait for the heirs to agree to leave. In case of refusal, you can apply for eviction in summary proceedings, as in this case. However, beware: if the holder had a surviving spouse, they may benefit from a temporary right of occupation for one year (Article 763 of the Civil Code). But this is not a transmissible right.

If you are an heir or legatee: you have no right to stay in the dwelling. Even if you think the owner owes you money (for example, unpaid annuity instalments), you cannot retain the property. You must bring a separate claim for payment. Concrete example: in Le Vigan, a son inherits his father's right of use over a house. The owner asks for the keys back. The son refuses, arguing that the owner owes him €15,000 for repairs. The Court of Appeal orders his eviction, because the right of use is extinguished. The son must take legal action to recover the €15,000, but without occupying the house.

If you are a tenant: this decision does not directly concern you, but it illustrates the difference between a lease (personal right) and a right of use (real right). A lease is sometimes transmitted to heirs (depending on the terms), but a right of use is not.

If you are a professional (notary, estate agent, lawyer): you must inform your clients that granting a right of use and occupation is a strictly personal act. In case of a gift or sale with a reservation of this right, make it clear that it expires on the death of the beneficiary.

Four tips to avoid this type of dispute

• Draft a clear contract: If you grant a right of use, state in writing that it is for life and non-transmissible. Have it done by a notary, with a "reverter to owner" clause in case of death.
• Anticipate the future of the dwelling: If you are an owner and grant a right of use to a relative, provide an alternative for the user's heirs (for example, a right of visit or a preferential lease).
• In case of death, act quickly: If the occupant refuses to leave, apply to the summary judge within weeks. Eviction can be ordered quickly (a few months). Do not let the heirs settle in permanently, as they might invoke a right to remain.
• Check for debts: Before evicting, ensure that the owner has no debts to the estate. If so, the legatee might try to invoke a right of retention (even if this decision limits it). Better to settle accounts before or alongside the eviction proceedings.

Further analysis: related case law and developments

This 1987 decision is consistent. It is found in other rulings: for example, Civ. 1re, 12 July 2000, No. 98-18.956, where the Court recalls that the right of use and occupation is not transmitted to heirs, even if the deceased had granted a lease. Similarly, Civ. 3e, 15 December 2010, No. 09-71.158, specifies that the right of use is non-assignable and non-seizable.

The trend of the courts is therefore very protective of owners. However, there is a notable exception: the right of occupation of the surviving spouse (Article 763 of the Civil Code). This right is temporary (one year) and free, but it is enforceable against the deceased's heirs. Beware: this is not a classic right of use, but a legal protection.

For the future, the law has not changed on this point. The reform of property law of 2021 (ordonnance of 15 September 2021) did not modify the rules on usufruct and the right of use. Therefore, this case law remains current.

Summary and next steps

FAQ:

1. What should I do if I am an owner and the occupant refuses to leave after the death of the holder of the right of use? Apply to the summary judge for an eviction order. You can also claim damages for unlawful occupation.
2. Can I transmit my right of use to my children by will? No, the right of use is for life and personal. It expires on your death. You cannot bequeath it.
3. Can the universal legatee retain the dwelling until the owner has reimbursed him? No, as this judgment says, the right of retention is attached to the right of use, which is extinguished. The legatee must bring a separate claim for payment.
4. What are the time limits for obtaining an eviction in summary proceedings? Expect 2 to 4 months for the hearing, then 1 to 2 months for eviction if the occupant does not leave voluntarily. The cost of proceedings ranges from €1,500 to €3,000 in lawyer's fees.
5. What should I do if I am an heir and have claims to assert (debts owed by the owner)? Bring a substantive claim for the sums due. But you must leave the premises, as you have no right to retain the property.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →