Rescission for Lesion: Sale with Usufruct and Expert Evidence on Appeal - The Propriano Case

Imagine: you own a house in Propriano, with a view of the gulf. You sell it while reserving the usufruct (the right to live in or receive rent from the property) for yourself or your spouse. A few years later, the buyer discovers that the price was much lower than the actual value. Can he demand the annulment of the sale? And if so, how is the value of the usufruct assessed? These questions, though technical, directly concern thousands of property transactions in Corsica and elsewhere.

The decision of the Court of Cassation on 3 October 1991 (No. 90-12.591) answers these questions precisely. It confirms that a sale with a reservation of usufruct is not necessarily aleatory (i.e., it does not depend on an uncertain event, such as the lifespan of the usufructuary). Consequently, an action for rescission for lesion (an action that allows the annulment of a sale if the price is less than 7/12 of the actual value) remains possible. And above all, the Court of Appeal may, after expert evidence, decide the merits of the dispute without referring the case back to the first instance. This mechanism, known as évocation, speeds up the procedure.

For Corsican owners and property professionals, this decision is a safeguard. It reminds us that a sale with usufruct does not escape judicial scrutiny of the price. And it offers a fast track to a final decision. Let us decode the facts, the judges' reasoning, and the practical consequences, with concrete examples in Corte and Propriano.

The Facts: A Story Like Many Others

Mr. Roland, owner of a house in Corte, sold his property while reserving the usufruct (right of use and enjoyment) for himself. The buyer, Mr. X, paid a price that he later believed to be much lower than the actual value of the property. Considering himself to have been prejudiced by more than 7/12 (the legal threshold for rescission), he brought an action before the Tribunal de Grande Instance (TGI) to have the sale annulled.

The TGI first declared the action admissible (i.e., it could be examined by the judge) and ordered an expert appraisal to value the property and calculate the value of the reserved usufruct. Mr. Roland appealed (challenged the judgment before the Court of Appeal) on the grounds that a sale with a reservation of usufruct is aleatory by nature: the duration of the usufruct depends on the seller's lifespan, making any certain valuation impossible. According to him, this aleatory nature excluded the action for rescission for lesion.

The Court of Appeal, after receiving the expert report, granted rescission of the sale (annulment) and ordered Mr. Roland to repay the price received, less the value of the usufruct. Mr. Roland appealed to the Court of Cassation (a further appeal). He argued that the usufruct gave the sale an aleatory character, that the expert appraisal had not correctly valued the usufruct, and that the Court of Appeal could not decide the merits without referring the case back to the first instance.

The Reasoning of the Court — Dissected

The Court of Cassation dismissed Mr. Roland's appeal. It upheld the Court of Appeal's decision on all points. Let us dissect its reasoning.

First question: Is a sale with usufruct aleatory? Article 1674 of the Civil Code (which allows rescission for lesion of more than 7/12 in the sale of immovable property) applies to all sales, except for legal exceptions. A sale with a reservation of usufruct is not, in itself, an aleatory contract (like a life annuity sale, where the price depends on the lifespan of the annuitant). Here, the reserved usufruct is an ancillary right, but the sale of the property itself remains an ordinary sale. The aleatory element regarding the duration of the usufruct can be taken into account in assessing the lesion, but it does not exclude the action. The Court of Cassation is clear: the fact that the usufruct is calculated using mortality tables does not remove the certain nature of the sale.

Second question: The power of évocation of the Court of Appeal. Under Article 568 of the Code of Civil Procedure (which allows the Court of Appeal to decide on points not adjudicated if it reverses the judgment), the Court of Appeal may, after declaring the action admissible and ordering an expert appraisal, decide the merits of the dispute after the report is filed. This is what is called évocation. It avoids a referral back to the first instance, thus speeding up the procedure. The Court of Cassation validates this mechanism, provided that the expert appraisal was regularly ordered and that the report was submitted to the parties for debate.

Third question: Valuation of the usufruct. The trial judges have sovereign discretion to assess the value of the usufruct based on the seller's age and mortality tables. The Court of Cassation does not review this assessment, unless there is a manifest error. In this case, the expert had correctly discounted the value of the usufruct, and the Court of Appeal followed his conclusions. The lesion was established: the sale price was less than 7/12 of the market value of the property, less the usufruct.

In summary, the decision confirms that rescission for lesion can apply to sales with usufruct, and that the Court of Appeal may decide the merits after expert evidence. This is a pragmatic solution that avoids years of litigation.

What This Means for You — Practically

This decision has immediate practical implications for several profiles.

• For the seller who has reserved a usufruct: Beware! You are not immune to an action for rescission if the price is too low. Example: you sell your house in Corte for €200,000, with a reservation of usufruct. If the market value is €400,000 and the usufruct is worth €80,000 (based on your age), the net value is €320,000. The price of €200,000 is higher than 7/12 of €320,000 (i.e., €186,667), so no lesion. But if you sell for €150,000, then the buyer can take action.
• For the buyer: If you have purchased a property with a reserved usufruct, you have a period of two years from the sale to bring an action for rescission (Article 1676 of the Civil Code). Have the property valued by an expert. If the lesion is established, you can demand annulment or a supplementary payment (the seller has the choice between the two).
• For the notary: You must inform the parties of the risk of lesion and recommend a prior valuation. A clause providing for a joint valuation can be inserted in the deed.
• For the property professional in Propriano: When valuing a property subject to a usufruct, take into account the discounted value of the usufruct (based on the age and life expectancy of the usufructuary). An error in valuation could give rise to liability.

Concrete example: In Corte, a couple sells their house with a usufruct reserved for the wife, aged 75. The expert values the market value at €300,000. The usufruct, calculated according to the tax scale (Article 669 of the CGI), is worth 30% of the value, i.e., €90,000. The net value is €210,000. The threshold for lesion (7/12) is €122,500. If the sale price is €100,000, the buyer can take action. The 1991 decision allows the Court of Appeal to decide quickly after expert evidence.

Four Tips to Avoid This Type of Dispute

• Have the property valued by an independent property expert before the sale. Do not rely on a single agency. Obtain two or three valuations to get a reliable price range. For a property with usufruct, the expert must incorporate the value of the usufruct based on the age of the usufructuary.
• Insert a clause excluding warranty as to the value of the usufruct in the sale deed. This clause cannot exclude the action for rescission (which is a matter of public policy), but it can serve as evidence that the parties were aware of the aleatory nature.
• For the buyer, check the market price at the time of the sale. Consult notarial databases (Perval, BIEN) or ask your notary for a market study. If the price seems abnormally low, ask questions.
• If in doubt, consult a lawyer specialising in property law before signing. Preventive advice costs less than a lawsuit. Maître Zakine, lawyer in Ajaccio, can assist you for sales in Propriano, Corte or elsewhere.

Further Reading: Related Case Law and Developments

The 1991 decision is part of a consistent line of Court of Cassation rulings. Previously, in a decision of 13 February 1985 (No. 83-16.214), the Court had held that the sale of a property with a reservation of usufruct is not aleatory and that rescission for lesion is possible. The 1991 decision confirms and clarifies the power of évocation of the Court of Appeal.

More recently, the Court of Cassation reminded (Civ. 3e, 12 July 2018, No. 17-20.234) that to calculate the lesion, the value of the usufruct must be assessed at the date of the sale, not at the date of the expert appraisal. This clarification is important because the value of the usufruct can vary with the age of the usufructuary.

Therefore, the trend of the courts is to protect buyers against sales at undervalued prices, even in the presence of a usufruct. Judges do not hesitate to order expert appraisals and to decide the merits to speed up proceedings. In the future, we can expect that sales with usufruct will be increasingly challenged, especially in times of rising property prices.

Summary and Next Steps

FAQ:

• Is a sale with usufruct always revisable? Yes, if the price is less than 7/12 of the net market value after deducting the usufruct. The action for rescission is available for two years.
• What should I do if I think I have been prejudiced? Consult a lawyer. He or she will advise you on the merits of an action and on the procedure (request for expert appraisal, etc.).
• Can the Court of Appeal really decide without referring back? Yes, if the first instance judgment ordered an expert appraisal and the appeal concerns the merits. This is the mechanism of évocation.
• What is the cost of an action for rescission? Expect €3,000 to €5,000 for a simple procedure, plus expert fees (€1,500 to €3,000). But a preventive consultation with Maître Zakine (€45) can save you these costs.
• Can I sell a property with usufruct without risk? Yes, if the price is in line with the market. Have the property valued by an expert and state the value of the usufruct in the deed.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) could save you months of litigation — and often much more. Book an appointment →