Repairs in Usufruct: The Derogatory Clause That Changes Everything (Cass. civ., 23 Jan. 2007)

Imagine: you own a flat in La Roche-sur-Foron, but you only have the usufruct (the right to enjoy it and receive the rent); the bare ownership (ownership of the property) belongs to your child, who received it as a gift. One day, the roof leaks, the boiler breaks down. Who is responsible for the repairs? The law says that, normally, the usufructuary pays for maintenance repairs, the bare owner for major repairs. But if the deed of gift provides for it, everything can change.

That is exactly what the French Supreme Court decided on 23 January 2007: a usufructuary can require the bare owner to carry out all works, even those that would normally be the usufructuary's responsibility, provided the deed of gift contains a clear clause to that effect. A question that every owner or donor wonders: can I impose specific obligations? This decision answers: yes, if you put them in writing.

Are you a usufructuary, a bare owner, or simply curious about how to secure a gift? This article analyses the judgment, its practical consequences, and gives you tips to avoid disputes.

The Facts: An Everyday Story

In 1993, a couple from Haute-Savoie, Mr and Mrs X, made a gift to their son of the bare ownership of several buildings located in Annecy and the surrounding area. They reserved the life usufruct for themselves. The deed was drafted by a notary and contained a special clause: "the donee shall be required to make all repairs, major or minor, that become necessary during the usufruct." A derogation from Article 605 of the Civil Code, which normally divides repairs between the usufructuary (maintenance) and the bare owner (structural works).

A few years later, the usufructuary (the father) noticed that major works were needed: roof repairs, electrical upgrades, replacement of the boiler. He asked his son, the bare owner, to carry out these works in accordance with the clause. The son refused, arguing that these repairs were "major" and normally fell on the usufructuary. The father sued him before the Annecy Regional Court (tribunal de grande instance).

The court ruled in favour of the father. But the Chambéry Court of Appeal overturned that judgment in 2006: in its view, the clause did not sufficiently derogate from Article 605 because it did not specify that the bare owner had to bear the cost of major repairs. The father appealed to the Supreme Court. The Supreme Court quashed the appeal judgment: it considered that the clause was clear and that the Court of Appeal had violated Article 1134 of the Civil Code (now 1103) by refusing to apply it. The case was remitted to the Grenoble Court of Appeal, which will have to rule while respecting the parties' intention.

The Reasoning of the Court — Analysed

To understand the judgment, we must go back to two fundamental texts. First, Article 605 of the Civil Code: "The usufructuary is only liable for maintenance repairs. Major repairs remain the responsibility of the owner, unless they were caused by the lack of maintenance repairs since the commencement of the usufruct; in which case the usufructuary also bears them." In other words, by default, the usufructuary pays for minor repairs (plumbing, painting, etc.) and the bare owner pays for major ones (roof, load-bearing walls, etc.). Next, Article 1134 (now 1103): "Agreements lawfully formed take the place of law for those who have made them." That is the principle of the binding force of contracts.

In this case, the clause in the deed of gift said: "the donee shall be required to make all repairs, major or minor, that become necessary during the usufruct." The Chambéry Court of Appeal held that this clause did not derogate from Article 605 because it did not specify that the bare owner had to bear the cost of major repairs. The Supreme Court disagreed: the clause is explicit, it includes all repairs. By refusing to apply it, the Court of Appeal violated the contractual law.

The Supreme Court did not create new law; it reiterated a constant principle: the parties may freely arrange their obligations, provided it is clear. Here, the donors' intention was manifest: to relieve the usufructuary of the burden. The decision confirms that lower courts cannot rewrite a contract on the pretext that it derogates from common law. This is a classic application of the binding force of agreements, but with an important practical stake.

What This Changes for You — Practically

If you are a usufructuary: you can require the bare owner to carry out all works, even routine maintenance, if the deed of gift or sale so provides. Beware: the clause must be drafted without ambiguity. For example, if the clause says "the bare owner undertakes to carry out necessary repairs", without specifying "major or minor", a judge might interpret it restrictively. As in the judgment, it is better to use the terms of Article 605 in reverse.

If you are a bare owner: you may be subject to much heavier obligations than the law provides. Before accepting a gift or purchasing a property encumbered with a usufruct, read the deed carefully. In Annecy, a bare owner had to pay €15,000 for roof works when he thought he was only responsible for major repairs. The clause was clear: "all repairs".

If you are a donor: you have every interest in drafting a precise clause. A notary can advise you. For example, if you want the usufructuary to stay at home without worrying about costs, provide that the bare owner assumes everything. But if you want to protect the bare owner, limit his obligations to major repairs.

If you are an heir or legatee: know that derogatory clauses can be a source of conflict. If in doubt, do not hesitate to consult a lawyer specialising in property law.

Four Tips to Avoid This Type of Dispute

• Draft precise clauses in the deed of gift or sale: If you wish to derogate from Article 605, explicitly mention "all repairs, major or minor". Avoid vague formulas like "necessary repairs".
• Use a notary or lawyer when drafting: A professional knows the pitfalls and can advise you on the scope of clauses. In La Roche-sur-Foron, a notary told me that 30% of deeds contain ambiguous clauses.
• Anticipate conflicts with a mediation clause: Before going to court, provide for a conciliation step. This can save thousands of euros in legal fees and years of proceedings.
• Keep all documents relating to the works: Invoices, quotes, correspondence. In case of dispute, they prove the urgency or nature of the repairs.

Further Analysis: Related Case Law and Developments

The decision of 23 January 2007 is part of a line of judgments that protect the parties' intention. For example, the Supreme Court held (Civ. 3e, 5 May 2004) that the usufructuary may also be liable for major repairs if the contract so provides. Conversely, in a judgment of 12 July 2005, it recalled that in the absence of a contrary clause, the usufructuary is not liable for major repairs, unless they result from his failure to maintain.

Since 2007, the courts have been strict about the need for a clear clause. A trend is emerging: lower courts no longer hesitate to apply the letter of the contract, even if it seems unbalanced. This means that, for property professionals, the drafting of deeds is crucial. For the future, it is likely that the Supreme Court will maintain this line, unless a clause is abusive or contrary to public policy.

In Practice: What to Do

Practical FAQ:

• Q: As a usufructuary, can I force the bare owner to do works if the deed is silent? A: No, unless they are major repairs (roof, load-bearing walls). For maintenance repairs, it is up to you.
• Q: What if the bare owner refuses to execute the clause? A: Send a formal notice (registered letter with acknowledgement of receipt). If nothing happens, petition the judicial court. A lawyer can help you assess your chances.
• Q: Can the clause be annulled for abuse? A: Exceptionally, if it is contrary to public policy (e.g., waiver of a fundamental right). But a simple derogation from Article 605 is valid.
• Q: What are the time limits to act? A: The limitation period is 5 years for personal actions (Article 2224 of the Civil Code). For real actions, 30 years. But do not wait: act as soon as the works become urgent.

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