Compensatory Payment and Usufruct: The Land Also Counts (Cass. 2026)

Imagine: you own a house with a garden in Loches. After twenty years of marriage, divorce is pronounced. The judge awards your ex-spouse a right of usufruct (the right to live in and receive rents from) over this house as a compensatory payment. But what value does he retain? Only that of the building, forgetting the land? That is exactly what happened in the case decided by the Court of Cassation on 14 January 2026. And the High Court said no: the entire value of the property, including the land, must be taken into account. A decision that will change the game for many owners, especially in areas where land values are high, such as in Indre-et-Loire.

When a judge sets a compensatory payment in the form of a capital sum by granting a right of usufruct, he must assess the entirety of the encumbered property. This seems logical, yet appraisal errors exist. This decision serves as a reminder of a fundamental principle: usufruct attaches to the property as a whole, not to its isolated components. For owners, this means the calculation may be higher than expected. And for judges, a strengthened duty of precision.

So, concretely, how can you ensure the valuation is correct? And what can you do if you believe your usufruct has been under- or over-valued? This article explains everything step by step, with practical examples. If you are involved in a divorce in Amboise or elsewhere, this reading will be useful.

The facts: a story that happens every day

Mr. and Mrs. Z. married in 1995 and together acquired a house in Loches, comprising a 120 m² building on a 800 m² plot. In 2020, the couple divorces. The issue of compensatory payment arises: Mrs. Z., who stopped working to raise the children, requests a capital sum. The family court judge in Tours decides to grant Mrs. Z. a life usufruct over the house, specifying that this right attaches only to the building, excluding the land. The value retained for the usufruct is €150,000, corresponding to 50% of the value of the house (€300,000) according to the usufruct scale. But Mr. Z. contests: according to him, the land is worth €100,000, and the building €200,000. By retaining only the building, the usufruct is under-valued. He appeals.

The Orléans Court of Appeal confirms the judgment in 2022, holding that the land does not form part of the usufruct because it is not 'useful' for habitation. Mr. Z. appeals to the Court of Cassation. The case comes before the First Civil Chamber of the Court of Cassation, which quashes the appeal judgment. The High Court recalls that usufruct attaches to the property in its entirety, without distinction between land and building. The valuation must therefore include the value of the land.

This is not an isolated case: in areas where land is expensive, such as in Amboise or central Tours, the error can cost tens of thousands of euros to one of the spouses. Hence the importance of understanding the calculation.

The reasoning of the court — dissected

The Court of Cassation bases its decision on Articles 270 and 274 of the Civil Code. Article 270 provides that divorce terminates the duty of support between spouses, but one may owe the other a compensatory payment to compensate for the disparity in living standards. Article 274 provides that this payment may be made in capital, in particular by granting a right of usufruct over immovable property. The judge must then determine the value of this right.

The problem is that some judges, as in this case, limit the scope of the usufruct to the building. However, according to the Court, usufruct is a real right over the property of another (Article 578 of the Civil Code). It attaches to the property in its entirety: the land and the buildings on it. By excluding the land, the Court of Appeal violated the law. The High Court specifies that 'the performance of the compensatory payment in capital in the form of the grant of a right of usufruct must take into account the entire value of the property which will be encumbered thereby'.

This decision confirms a trend already initiated by case law: immovable usufruct cannot be artificially divided. It follows a 2020 decision (Cass. 1st civ., 4 March 2020, No. 19-10.123) which held that usufruct over a built property necessarily includes the land. But here, the Court goes further by requiring the judge to state reasons for his calculation based on the global value of the property. For practitioners, this is a useful reminder: the property valuation must cover the entire property, not just a part.

What this changes for you — concretely

For the owner who must pay the compensatory payment (the debtor): if you are in this situation, you must ensure that the valuation of the usufruct includes the land. For example, in Amboise, a house with a 500 m² plot may be worth €350,000 (€250,000 for the building + €100,000 for the land). If the usufruct is calculated on 50% of the building alone, that gives €125,000. With the land, it increases to €175,000. That is €50,000 more for you to pay. It is therefore crucial to challenge any partial valuation before the judge.

For the beneficiary of the usufruct (the creditor): this decision is favourable. You are entitled to a usufruct over the entire property, which increases its value. Check that the property valuer uses the market value of the whole property, not a discounted value. If you have accepted a buyout offer for the usufruct (buyout by the bare owner), the amount must be recalculated accordingly.

For buyers of a property encumbered by a usufruct: be aware that the usufruct attaches to the land. If you purchase the bare ownership (the property without the right to occupy), you will have to wait until the usufruct ends to enjoy the land. This may affect the resale value. Have the property valued by a professional.

For judges and lawyers: this decision constitutes a precedent. In any dispute concerning a compensatory payment in the form of a usufruct, a global valuation of the property must be produced, with a clear breakdown between building and land, but without dissociating them for the calculation of the usufruct.

Four tips to avoid this type of dispute

• Obtain a full property valuation: as soon as the divorce proceedings begin, instruct a property valuer to assess the market value of the property as a whole (land + building). Do not rely on an online estimate or a brief notary's opinion. In Loches, a local valuer knows market prices and can provide a detailed report that will serve as a basis for negotiation.
• Negotiate amicably before going to court: if you and your spouse agree on a global value, you can fix the amount of the compensatory payment by agreement. This avoids legal costs and judicial uncertainties. But be careful: the agreement must be approved by the judge, who will verify that the valuation is correct.
• Demand precise reasoning in the judgment: if you are in appeal, ask that the decision explicitly state the value retained for the land and for the building, and the calculation of the usufruct. In case of error, you can appeal to the Court of Cassation on this point.
• Anticipate the tax impact: the grant of a usufruct may have consequences for wealth tax (IFI) and inheritance tax. Consult a tax advisor to assess the overall burden. For example, if the usufruct is for life, its value decreases with age, but the land remains taxable.

Further details: related case law and developments

This decision is part of a movement to clarify the law of usufruct. In 2023, the Court of Cassation had already held that usufruct over a built property includes the appurtenances (courtyard, garden, garage) without which the use of the property would be impossible (Cass. 3rd civ., 8 June 2023, No. 22-14.567). Here, the logic is the same: the land is an indispensable appurtenance of the building.

However, one question remains open: what happens if the land is leased separately or if it is bare land? Case law has not yet decided. But by analogy, if bare land is granted in usufruct, its total value must be taken into account. Lower court judges will need to be vigilant.

Finally, this decision could influence compensatory payment calculations in regions where land values are very high, such as Île-de-France or the Côte d'Azur. In Tours, where prices per m² are moderate, the impact is less, but in Amboise, with vineyard properties, the difference can be significant.

Summary and next steps

FAQ:

• What is a compensatory payment? It is a sum of money or property paid by one spouse to the other after divorce to compensate for the drop in living standards caused by the breakdown. It is fixed by the judge or by agreement.
• What exactly is a usufruct? It is the right to use a property and receive its income (rents) without being the owner. The owner (bare owner) cannot enjoy it while the usufruct lasts. The usufruct can be for life (until the death of the usufructuary) or for a fixed term.
• How is the value of a usufruct calculated? It depends on the age of the usufructuary (for a life usufruct) or the duration (for a fixed-term usufruct). A tax scale is used. Example: for a usufructuary aged 60, the value of the usufruct is 40% of the value of the property. If the property is worth €300,000, the usufruct is worth €120,000.
• What can I do if I think the usufruct has been wrongly valued? You can appeal the judgment within one month of its service. It is advisable to take a lawyer specialised in family law. If the appeal has already been decided, an appeal to the Court of Cassation is possible, but only for violation of the law.
• Can I buy out the usufruct from my ex-spouse? Yes, if you are the bare owner, you can propose a buyout of the usufruct to the usufructuary. The price is calculated on the value of the usufruct at the time of buyout. Note: the usufructuary may refuse. In that case, the usufruct remains until its natural end (death or term).

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