Occupation without title: who must prove the right to occupy?

Imagine: you sell your flat in Beaulieu-sur-Mer, but the buyers move in before signing at the notary's office. You ask them for an occupation indemnity. They refuse, arguing that they have the right to occupy. Who must prove what? That is the question raised by this case.

This decision of the Court of Cassation of 16 November 1971 (No. 70-11.962) is an essential reference in matters of burden of proof. It answers a simple but crucial question: where a contractual clause fixes the date of entry into possession as the date of the notarial sale, who must prove the right to occupy before that date?

The judges ruled: it is for the occupant to provide proof of their right. No title, no free occupation. A solution that seems logical, but which was challenged all the way to the Court of Cassation.

The facts: a story like those that happen every day

Mr and Mrs X, owners of a villa in Villefranche-sur-Mer, sign a preliminary sale agreement with Mr and Mrs Y. The contract clearly states that the buyers' entry into possession will take place upon completion of the sale by notarial deed. So far, everything is clear.

Except that the Ys, eager to move in, take possession of the premises before the notarial signing. The sellers agree, but a few months later, the sale does not go through. The Xs then sue the buyers for payment of an occupation indemnity for the period during which they occupied without title.

Before the court, the buyers rely on an earlier decision that had ordered an expert appraisal to assess the indemnity due "in the event of taking possession declared irregular". According to them, this judgment had the force of res judicata and implicitly recognised their right to occupy. Did the trial judges agree? No. They asked the buyers to prove that they had a right to occupy. Unable to do so, the court imposed an indemnity on them.

The Ys appealed to the Court of Cassation, arguing that the judges had reversed the burden of proof and disregarded the authority of res judicata. The Court of Cassation dismissed their appeal, upholding the reasoning of the trial judges.

The reasoning of the court — analysed

The Court of Cassation recalls a fundamental principle: the person who asserts a right must prove it. In this case, the buyers occupied the premises before the date provided for in the contract. They therefore had to demonstrate that they had a title (a right) to do so. However, the preliminary agreement was clear: entry into possession was deferred to the notarial deed. No other clause or subsequent agreement was invoked.

The trial judges simply applied the rules of evidence: they found that the buyers did not provide proof of a right to occupy. By asking them for this proof, they did not reverse the burden of proof; they respected it. This is logical: it is not for the owner to prove that the occupant has no right; it is for the occupant to prove that they have a right.

As for the argument of res judicata, the Court dismisses it: the first judgment ordering an expert appraisal did not have the authority of res judicata on the merits. It was a preliminary measure before judgment, which did not decide the dispute on the principle of the indemnity. The trial judges were therefore free to assess the merits.

This solution is in line with settled case law: the occupant without title owes an occupation indemnity, and it is for them to prove that they have a title. The Court of Cassation merely confirmed a classic rule, without any change or reversal.

What this changes for you — practically

For owners, this is a safeguard: if a buyer or tenant occupies before the agreed date, you can claim an occupation indemnity without having to prove that they are in bad faith. It is for them to justify their right. Example with figures: in Villefranche-sur-Mer, a 70 m² flat rents for about €1,200 per month. If the occupant stays for six months without title, the indemnity can reach €7,200, or even more if the rental value is higher.

For buyers or tenants, the message is clear: do not move in before having a written title. Even if the seller gives you verbal consent, without written evidence, you will be in difficulty proving your right. If you are in this situation, you must keep all written evidence (email, text message, handwritten clause) showing that you had the right to occupy.

For real estate professionals, this decision reminds us of the importance of drafting precise clauses on the date of entry into possession. An ambiguous clause can generate costly disputes.

Four tips to avoid this type of dispute

• Draft a clear clause on the date of entry into possession in the preliminary agreement or lease: state the precise date or the link with an event (signing of the notarial deed, handover of keys). Avoid vague phrases like "as soon as possible".
• Only hand over the keys after the signing of the notarial deed or lease. If early occupation is agreed, have it recorded in a written addendum specifying the conditions and any indemnity.
• Keep all written records: email exchanges, text messages, registered letters. A verbal agreement on early occupation is difficult to prove.
• In case of occupation without title, react quickly: send a formal notice by registered letter with acknowledgment of receipt, then initiate legal proceedings if necessary. The longer you wait, the higher the indemnity will be, but also the greater the risk that the occupant acquires a right through tolerance.

Further reading: related case law and developments

This 1971 decision is often cited in disputes over occupation without right or title. It was confirmed by a ruling of the Court of Cassation of 21 November 2001 (No. 99-21.928) which specifies that the occupant without title must prove that they have a right to occupy. The trend is consistent: no reversal in sight.

A more recent ruling of 8 June 2017 (No. 16-17.694) recalls that the occupation indemnity is due even in the absence of bad faith on the part of the occupant. As soon as the occupation is without title, it is wrongful within the meaning of article 1240 of the Civil Code (liability for fault).

However, be careful: if the owner allowed the occupant to move in without protest, this may be interpreted as tolerance, but not as a right. The case law is strict: tolerance does not create a right.

In practice: what to do

Checklist: What to do if you are an owner and an occupant is without title

1. Check the contract: the date of entry into possession provided for, clauses on early occupation.
2. Send a formal notice by registered letter with acknowledgment of receipt to vacate the premises or regularise, with a claim for an occupation indemnity.
3. Gather evidence: contract, correspondence, bailiff's report if necessary.
4. Bring the matter before the judicial court in interim proceedings or on the merits to obtain eviction and payment of the indemnity.
5. Calculate the indemnity based on the rental value of the property (reference: market rent in Villefranche-sur-Mer, i.e. approximately €17/m² in 2023).

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 →