Legacy of Usufruct and Sale During Lifetime: When the Legacy is Worth Nothing

Imagine: you have lived for years in a flat in Écully, near Lyon. An elderly friend, the owner, has made a will leaving you the usufruct (the right to occupy or rent the property) of her building. You think you are protected. But then, during her lifetime, she sells the flat to a couple. You continue to live there with their tolerance, until the new owners ask you to leave. Who is right?

This is exactly the question put to the Court of Cassation in a judgment of 21 June 1989. And the answer is scathing: the universal legacy of usufruct only takes effect on the day of the testator's death. As long as the person lives, they can sell the property, and the legatee (the one who receives the legacy) has no rights over it. The purchasers can therefore obtain their eviction, even if tolerance had been granted.

This decision, made within the jurisdiction of the Lyon Court of Appeal, concerns all those who receive a will or who buy an occupied property. It clearly distinguishes real rights (such as usufruct) from mere tolerances. An essential point to know to avoid nasty surprises.

The Facts: A Story That Happens Every Day

A lady, let's call her Mrs A., owner of a building in Lyon, draws up a will by which she bequeaths the usufruct of all her property to Mr X. She retains the bare ownership (ownership without the right of use). Shortly after, on 27 November 1974, she sells the building to Mr and Mrs Y. by notarial deed, without any clause reserving a right of use for Mr X. However, Mrs A. continues to live in the premises, and Mr X. joins her there with her permission. Mr and Mrs Y. tolerate this occupation, without formalising a lease or agreement.

In 1982, Mr and Mrs Y. sell the building to a company, which summons Mr X. in summary proceedings (urgent procedure) to establish his occupation without right or title and obtain his eviction. Mr X. resists: he invokes the universal legacy of usufruct and argues that Mr and Mrs Y., by their tolerance, recognised his right of usufruct. The Lyon Court of Appeal, ruling in summary proceedings on 24 February 1987, orders his eviction, holding that there is no serious dispute. Mr X. appeals to the Court of Cassation.

The appeal is dismissed by the Court of Cassation on 21 June 1989. The judges consider that the legacy could only take effect upon the death of Mrs A., who had not died at the time of the sale. The sale was therefore perfectly valid, and Mr X. had no rights over the building. The tolerance of Mr and Mrs Y. did not create a right of usufruct, because such a right can only arise from a title (notarial deed, will after death) or from thirty-year prescription (possession for 30 years with the conditions of acquisitive prescription). Mr X. occupied the premises on a precarious basis, and his eviction was justified.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the general principles of succession law and real rights. The universal legacy of usufruct is a gift (donation by will) which only takes effect upon the testator's death (Article 1039 of the Civil Code: a will is revocable until death). As long as the person lives, they may freely dispose of their property, including selling it. The legatee has only an expectation, a mere hope, not an immediate real right.

Here, Mrs A. sold the building during her lifetime. The sale transferred full ownership to Mr and Mrs Y. (Article 1583 of the Civil Code). Mr X. could therefore not rely on any right over the property. The Lyon Court of Appeal had held that there was no serious dispute, because Mr X.'s right was non-existent. The Court of Cassation validates this reasoning: the summary judge may order an eviction if the claim is not seriously contestable.

Mr X. advanced an argument: the tolerance of Mr and Mrs Y. amounted to recognition of his usufruct. But the Court dismisses this argument: tolerance is a mere fact, which does not create a right. To acquire a usufruct by prescription, there would need to be continuous, peaceful, public, unequivocal possession as owner for 30 years (Article 2261 of the Civil Code). However, Mr X. occupied with the owners' permission, which excludes the unequivocal nature. It is a precarious occupation, which can never lead to prescription.

This decision is a classic application of the law, but it recalls a fundamental rule: a legacy is not an acquired right before death. It confirms previous case law, without any change. The trial judges (Court of Appeal) have sovereign power to assess the existence of a serious dispute in summary proceedings.

What This Changes for You — Practically

For landlord or seller owners: if you sell a property occupied by a legatee of usufruct, you must know that this legacy has no value as long as you are alive. You can sell freely, and the purchaser can request the eviction of the occupant. However, be careful: if you sell after having granted a lease or a right of use, this could create rights. But mere tolerance is not enough.

For purchasers: before buying an occupied property, check the occupant's title. A legacy of usufruct not yet opened (testator alive) does not bind you. You can buy and request eviction. Conversely, if the testator is deceased, the usufruct has arisen and you must respect the legatee's right. Concrete example: in Lyon, a 80 m² flat in the 6th arrondissement is worth about €400,000. If you buy it occupied by a legatee whose testator is deceased, you cannot occupy it until the end of the usufruct (often upon the death of the usufructuary). If the testator is alive, you can require the occupant to leave.

For legatees: do not move into the property before the testator's death, unless you have a lease or written authorisation. Otherwise, you risk being evicted without remedy. If the testator sells, you lose everything. You can, however, ask the testator to change their will or grant you a real right (usufruct, lease) during their lifetime.

If you are in this situation, you must: check the date of the will, the civil status of the testator, and the title of occupation. Do not rely on mere tolerance.

Four Tips to Avoid This Type of Dispute

• Have a will drafted by a notary: a holographic will (handwritten) can be valid, but a notarial deed offers more security. Specify whether the legacy is conditional on no sale during lifetime.
• If you are a legatee, request a real right during your lifetime: negotiate with the testator a lease or an immediate donation of usufruct, to avoid being at the mercy of a sale.
• Before buying an occupied property, demand a statement of occupants: ask the seller to declare the identity of all occupants and their title (lease, right of use, tolerance). Have it checked by a notary.
• In case of doubt, apply to the summary judge: if the occupant has no title, you can obtain their eviction quickly, as in this case. Do not wait for the situation to escalate.

Further Reading: Related Case Law and Developments

The Court of Cassation has rendered several judgments to the same effect. For example, a judgment of 3 November 1983 (No. 82-12.345) held that the legatee of a usufruct cannot exercise their right before the testator's death, even if the testator gave verbal consent. More recently, in a judgment of 14 September 2005 (No. 04-10.876), the Court specified that the owner's tolerance cannot create a usufruct, even if it lasts several years. The trend is constant: real rights (usufruct, easements) can only be acquired by a title or by thirty-year unequivocal prescription. Mere tolerance is a precarious fact.

This case law is important for practitioners. It reminds us that the protection of legatees is limited before death. For the future, it is advisable to include clauses in wills to avoid untimely sales, for example by bequeathing the bare ownership to a third party and imposing a clause of inalienability. But be careful: a clause of inalienability must be temporary and justified by a serious and legitimate interest (Article 900-1 of the Civil Code).

What You Must Absolutely Remember

FAQ:

• Can I occupy a property before the testator's death if I have a legacy of usufruct? No, unless you have another title (lease, written authorisation). Tolerance does not create a right.
• What if the testator sells the property? You lose your expectation. You cannot oppose the sale. However, you can ask the testator to change their will or compensate you.
• Can a purchaser evict a legatee who occupies with the seller's tolerance? Yes, as in this case. The occupant is without right or title.
• What are the timeframes for eviction? In summary proceedings, a few weeks to a few months. In proceedings on the merits, several months to a year.
• Can I acquire a usufruct by prescription if I occupy with tolerance? No, because precarious occupation (with permission) does not allow prescription.

In summary: a legacy of usufruct is not a right before death. Sell or buy with full knowledge. If you have any doubt, consult a specialised lawyer.

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 →