Succession Co-ownership: Partition Can Always Be Requested, Regardless of Testamentary Clause

Imagine: you inherit a house in Romilly-sur-Seine with your two sisters. Your father, in his will, wrote that the house would remain in the family for ten years, and that your brother, who already lives there, could stay by paying a modest rent. You want to sell to recover your share. Can you force the sale? The answer is yes, regardless of what the will says. This is what the Court of Cassation ruled in a famous decision of 5 January 1977. A decision that still carries authority today.

The principle is fundamental: no one can be forced to remain in co-ownership (Article 815 of the Civil Code). This means that any heir may, at any time, demand the partition of the estate property. Even if the deceased attempted to prohibit this possibility in their will, such a clause is void. Why? Because the right to exit co-ownership is an essential right, a matter of public policy. One cannot waive it in advance.

In this case, a father died leaving three children: Simone, Renée and Fernand. The will provided that the verbal lease granted to Fernand would be converted into a registered lease of considerable length, and that the two sisters could not demand the licitation (sale by auction) of the property. But Simone and Renée nonetheless brought the matter to court to obtain partition. The Court of Appeal refused, relying on the testamentary clause. The Court of Cassation overturned this decision: the clause was contrary to Article 815 and could not prevent partition.

The facts: a story that happens every day

Upon the death of Mr. Y. on 28 April 1965, his three children found themselves in co-ownership of a building. Fernand, one of the sons, already occupied the premises during his father's lifetime under a verbal lease. The deceased's will contained a peculiar clause: this verbal lease was to be converted into a registered lease for a fixed term, and the two sisters could not demand the sale of the property. In short, the father wanted Fernand to remain on the premises as long as possible, and his daughters to be unable to evict him.

Simone and Renée did not accept this situation. In December 1968, they sued Fernand to demand the licitation of the building (sale by auction) and partition of the proceeds. They argued that the testamentary clause was void and that they had the right to exit the co-ownership. Fernand, on the other hand, maintained that the father's wishes should be respected and that the lease should run its course.

The first instance court partially ruled in favour of the sisters, but the Reims Court of Appeal (district of Troyes) reversed this judgment. The judges held that the testamentary clause was valid and that the sisters could not demand licitation until the lease expired. Simone and Renée then appealed to the Court of Cassation. The High Court ruled in their favour, recalling that Article 815 of the Civil Code is mandatory: no clause, even testamentary, can prevent the right to request partition.

The reasoning of the court — broken down

The Court of Cassation relied on Article 815 of the Civil Code, which provides that "no one can be forced to remain in co-ownership and partition may always be requested, notwithstanding any prohibitions and contrary agreements." This text is a matter of public policy: it protects the individual freedom of each co-heir. The legislature intended to prevent a person from being trapped in a co-ownership situation against their will.

In this case, the Court of Appeal had refused to grant the sisters' request based on the testamentary clause that established a lease in favour of Fernand. But the Court of Cassation held that this clause was precisely a "contrary prohibition" within the meaning of Article 815. It does not matter that the will expresses the deceased's wishes: those wishes cannot override a fundamental right of the Civil Code. The Court of Appeal's decision was therefore quashed.

This reasoning is not isolated. It is part of a consistent line of case law protecting the right to exit co-ownership. The courts consider that co-ownership agreements (such as leases or non-partition clauses) are valid only if they are temporary and freely consented to after the succession opens. A will cannot impose perpetual co-ownership. The solution is logical: the right of property includes the right to dispose of one's property. Forcing an heir to remain in co-ownership infringes their right of property.

What this means for you — concretely

This decision has important practical consequences for heirs in co-ownership. If you are the owner of a property in co-ownership (for example, an inherited house in Bar-sur-Seine), you can at any time request partition, even if the deceased attempted to prohibit it in their will. Concretely, this means you can bring the matter before the judicial court to request either an amicable partition (with everyone's agreement) or licitation (sale by auction) if the others refuse.

Let's take a numerical example: imagine you hold 30% of a house valued at €300,000, with your two brothers each holding 35%. You want to sell, but your brothers refuse, citing a clause in the will that prohibits sale for 10 years. The 1977 decision allows you to override this: you can request licitation. The auction will take place, and each will receive their share of the price, minus costs. However, be aware: the procedure can take several months (6 to 18 months on average) and cost between €2,000 and €5,000 in lawyer and expert fees.

For tenants, be careful: if you are a tenant of a co-owned property, you are not protected by this case law. The lease may be challenged if the partition results in a sale. The tenant may be served with a notice to quit for sale (6 months' notice before the end of the lease). However, the judge may also maintain the lease if the buyer is a co-heir who wishes to continue the tenancy.

Finally, real estate professionals (notaries, agents) must be vigilant: when drafting wills or partition deeds, they must remind clients that clauses prohibiting partition are void. It is possible to provide for a conventional co-ownership (with a limited duration, e.g., 5 years), but only if all heirs consent after the death.

Four tips to avoid this type of dispute

• Do not insert a clause prohibiting partition in your will. It would be void and could create unnecessary conflicts among your heirs. If you wish to protect a child who occupies the property, opt for a right of use and habitation (Article 625 of the Civil Code) or a lease granted after death.
• If you are in co-ownership and wish to exit, start with amicable negotiation. Propose to your co-heirs a buyout of their shares or an amicable sale. A negotiated solution costs less and preserves family relationships. Failing that, you can request licitation.
• Keep all documents relating to the succession: will, certificate of inheritance, estate liquidation statement. They will be useful to prove your status as heir and the composition of the co-ownership.
• Consult a lawyer specialised in property law before taking legal action. Judicial partition is a complex procedure. A professional will help you assess your chances and choose the most appropriate route (amicable partition, licitation, etc.).

Further reading: related case law and developments

This 1977 decision is part of a consistent line of case law. Already, a Court of Cassation decision of 13 November 1973 (No. 72-11.567) had held that a clause in a will prohibiting partition was void as contrary to Article 815. More recently, in a decision of 8 June 2017 (No. 16-15.819), the Court confirmed that even a conventional co-ownership (i.e., organised by contract) cannot be perpetual: its maximum duration is 5 years, renewable by unanimous agreement.

The trend is therefore clear: the right to exit co-ownership is a fundamental right, and the courts are very strict in ensuring its respect. Attempts to circumvent it (testamentary clauses, long-term leases, etc.) are systematically sanctioned. This means that heirs must be informed of their rights from the opening of the succession. In the future, we can expect courts to continue to protect this right, even against complex legal structures.

Checklist before taking action

1. Check your status as co-owner: Are you an heir? Have you accepted the succession? If so, you are in co-ownership.
2. Consult the will: Is there a clause prohibiting partition or imposing a lease? If so, it is probably void, but have it verified by a lawyer.
3. Estimate the value of the property: Use an estate agent or an expert to find out the market price. This will help you negotiate a buyout or set a reserve price for licitation.
4. Attempt an amicable agreement: Propose to your co-heirs to buy out their shares or sell amicably. If an agreement is reached, have a notary draw up a partition deed.
5. If that fails, apply to the judicial court: File a petition for partition. You can request licitation (sale by auction) if the property is not divisible in kind.

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 →