Co-ownership and Usufruct: Forced Sale Possible Even Against the Usufructuary

Picture the scene: in Blagnac, two brothers inherit a family home. Their mother, a widow, has the usufruct (the right to live in the property and receive rent). Years pass, the brothers want to sell to recover their share, but their mother opposes it. Can they force her? This question is asked by thousands of property owners every year. The answer, given by the Court of Cassation in 1982, is clear: yes, partition can be imposed, and the sale of the full ownership can be ordered even against the usufructuary. Explanations.

The Facts: A Common Story

In August 1976, a man dies, leaving his widow, born Alice…, married under the community of acquests (assets acquired during the marriage) and appointed as her legatee in usufruct (she receives the usufruct of the estate). The heirs are the couple's children, bare owners (they own the property but without the right to enjoy it). Very quickly, a disagreement arises: the children wish to sell the property to share the value, but the widow refuses, arguing that her status as usufructuary allows her to oppose any sale. The children take the matter to the Tribunal de Grande Instance of Toulouse, which orders the licitation (sale by auction) of the full ownership. The widow appeals, but the Court of Appeal confirms: the sale is necessary to determine the basis for the usufruct (i.e., to assess the value of the usufruct and allow partition). The case goes up to the Court of Cassation, which dismisses the widow's appeal.

The Reasoning of the Court — Analysed

The judges rely on Article 815-5 of the Civil Code (former), which provides that partition can always be ordered, and that the judicial sale of the full ownership can be ordered even if the property is encumbered with a usufruct. In simple terms: as soon as a property is in co-ownership (multiple owners), any co-owner can ask the judge to terminate the co-ownership, even if that means selling the property. The usufructuary, however, is not the owner of the bare ownership; they only have a right of enjoyment. Their opposition therefore does not prevent the sale. The Court specifies that the sale of the full ownership (usufruct + bare ownership) is possible because it respects the rights of the usufructuary: the latter receives a sum of money corresponding to the capitalised value of their usufruct. This is a balanced solution, already accepted by earlier case law. Here, the Court simply confirms that Article 815-5 applies even if the usufructuary is not a co-owner (they are not a co-owner of the bare ownership).

What This Changes for You — Practically

For a landlord in Saint-Gaudens: if you are a bare owner and the usufructuary (often an elderly parent) refuses to sell, you can apply to the court to obtain the sale. Example: a property valued at €200,000, usufruct estimated at 40% (€80,000 for the usufructuary, €120,000 for you). After the sale, you recover your share. For the usufructuary: they lose their right to live there but receive compensation. Note: the judge may refuse if the sale is not necessary (e.g., if the property can be partitioned in kind). If you are a buyer: you can buy a co-owned property, but be aware that the sale can be imposed by a single co-owner. In practice, this type of dispute lasts on average 12 to 18 months. Legal costs (lawyer, expert, etc.) can reach €3,000 to €5,000, but are often recoverable from the sale price.

Four Tips to Avoid This Type of Dispute

• Draft a co-ownership agreement: provide for exit arrangements (amicable sale, buyout of shares) to avoid deadlock.
• Value the usufruct from the outset: have the value of the usufruct assessed by a notary or expert to facilitate a potential buyout.
• Prefer an amicable sale: discuss with the usufructuary to find an agreement (e.g., sale with reserved life usufruct).
• Consult a lawyer before starting proceedings: preliminary advice can save you unnecessary costs if the sale is not necessary.

Further Details: Related Case Law and Developments

This 1982 decision has been confirmed several times. For example, in a judgment of 20 March 2001 (No. 99-10.362), the Court of Cassation reiterated that the usufructuary cannot oppose a sale ordered under Article 815-5. However, if the usufructuary is themselves a co-owner (for example, if they also hold shares of the bare ownership), the situation is different: they can block the partition. The trend of the courts is therefore clear: the wishes of the usufructuary do not prevail over the right to partition. For the future, the 2006 reform of inheritance law did not amend Article 815-5, so the rule remains unchanged.

Key Points to Remember

FAQ:

• Can I force the sale if I am a bare owner and the usufructuary refuses? Yes, by asking the judge to apply Article 815-5 of the Civil Code.
• Does the usufructuary lose all their rights? No, they receive compensation equal to the value of their usufruct, calculated according to their age.
• How long does the procedure take? On average 12 to 18 months, depending on complexity.
• Can I buy a co-owned property encumbered with a usufruct? Yes, but you should know that the sale can be imposed by a bare owner.
• What should I do if I am a usufructuary and want to keep the property? Offer to buy the bare owners' shares, or negotiate to stay in the property for a fee.

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 →