Seizure of Undivided Usufruct by Attachment of the Sale Price: The Court of Cassation Allows the Seizure of the Sale Price

Imagine: you own a flat in Lagny-sur-Marne of which you hold the usufruct (the right to use the property and receive the rent), and your children are bare owners (they have ownership but not the use). A personal creditor is pursuing you for a personal debt. Can they seize your share of the usufruct in the sale price of the property? The Court of Cassation says yes, and this is a game-changer for creditors. How is this possible?

This decision of 15 May 2019 clarifies a crucial point: usufruct is a real right (a right over a thing) that can be seized individually, even if the bare ownership is held jointly with a third party. In practice, a creditor can request the sale of the property and be paid out of the portion of the price corresponding to the usufruct. This should make indebted usufructuaries think twice.

Whether you are an owner in Torcy, a tenant in Meaux, or a property professional, this case law changes the situation. Let us delve into the facts, the judges' reasoning, and above all, what you must do to protect your rights.

The Facts: A Story Like Many Others

Mrs. Place was the usufructuary of a flat located in Torcy (Seine-et-Marne). She also held one quarter in full ownership (usufruct + bare ownership) from the estate of her deceased husband. The remainder of the bare ownership belonged to her children, held jointly (co-ownership without physical division). A personal creditor of Mrs. Place obtained an attachment of a sum of money (saisie-attribution) over the sale price of the property, after it had been sold in a forced sale procedure (licitation) of jointly owned property.

Mrs. Place's children contested the seizure, arguing that the usufruct was held jointly with the bare ownership, and that the creditor could only seize their mother's joint share, not the entire value of the usufruct. They considered that the sale price should be distributed among all the joint owners according to their shares, without distinguishing the value of the usufruct.

The Paris Court of Appeal ruled in favour of the children, cancelling the seizure. The creditor appealed to the Court of Cassation. The Court of Cassation quashed the appeal judgment, holding that usufruct is a real right distinct from bare ownership. Mrs. Place had a separate right to the portion of the price corresponding to the value of her usufruct, which was not jointly owned. The creditor could therefore seize it.

The Reasoning of the Court — Analysed

The Court of Cassation relied on Article 578 of the Civil Code (definition of usufruct: the right to enjoy things of which another has ownership) and Article 582 (the usufructuary has the right to enjoy all kinds of fruits). But above all, it recalled that usufruct is a real right (a right over a thing, like ownership) that can be seized like any other asset, independently of the bare ownership.

The judges' reasoning is clear: 'usufruct is a real right which attaches to the sale price of the property.' In other words, when the property is sold, the usufruct is converted into a claim on the price. This claim belongs to the usufructuary alone, and not to the joint ownership. Therefore, the personal creditor of the usufructuary can seize it.

This decision confirms earlier case law (Civ. 1re, 15 May 2008, No. 07-13.277) which already allowed the seizure of usufruct. But it innovates by specifying that even if the usufructuary is in joint ownership with third parties over the bare ownership, their usufruct remains a separate, seizable right. The lower court judges had erred in considering that the usufruct was 'jointly owned' with the bare ownership: however, these are two different rights, even if they relate to the same property.

In practice, this means that to calculate what the creditor can seize, one must assess the value of the usufruct (for example, according to the tax scale: 50% of the property value if the usufructuary is 50 years old) and seize that sum from the sale price. The remainder of the price (corresponding to the bare ownership) goes to the bare owners.

What This Changes for You — Concretely

For an indebted usufructuary owner, this decision is a warning. If you owe money to a creditor, they can potentially seize your usufruct, even if you are only a partial owner. Imagine you are a 100% usufructuary of a property worth €200,000, and your children are bare owners. If a creditor claims €40,000 from you, they can have the property sold and pay themselves from the €60,000 corresponding to the value of your usufruct (if you are 60, the estimated value is 30% of the property, i.e., €60,000). You lose your right of use and to receive rent.

For a creditor, this decision opens an effective remedy. In Lagny-sur-Marne, a creditor can now directly seize the usufruct share in the sale price, without waiting for the partition of the joint ownership. They can even cause the property to be sold by forced sale if necessary.

For a bare owner, this is a concern: the forced sale of the property can be ordered for a debt that is not yours. You will then be forced to sell your share (the bare ownership) with a defaulting usufructuary. You will receive your share of the price but will lose the property.

If you are in this situation, you must check whether you are a usufructuary or a bare owner, and anticipate the risks. For example, if you are a usufructuary and have debts, consider selling your usufruct to a third party (with the agreement of the bare owner) to satisfy your creditors.

Four Tips to Avoid This Type of Dispute

• Regularly assess the value of your usufruct: Have your usufruct valued by a notary or expert, especially if you have debts. This will allow you to know the seizable amount.
• Negotiate with your creditors before seizure: If you are in difficulty, propose a payment plan or a friendly sale of your usufruct. Avoid seizure which incurs costs and a forced sale.
• Protect your bare owners: If you are a bare owner, require the usufructuary to take out insurance or a guarantee to prevent their debts from leading to the sale of the property. You can also request the conversion of the usufruct into a life annuity.
• Consult a lawyer as soon as seizure is threatened: In Torcy or elsewhere, prompt action can block an abusive seizure or arrange a sale at a better price.

Further Analysis: Related Case Law and Developments

This decision is part of a trend favourable to creditors. Already, the Court of Cassation had allowed the seizure of usufruct in cases of personal debt (Civ. 1re, 15 May 2008, No. 07-13.277). More recently, it extended this possibility to successive usufruct (Civ. 1re, 10 March 2021, No. 19-22.503).

In contrast, a 2016 decision (Civ. 2e, 14 January 2016, No. 14-29.037) had seemed to limit seizure in cases of joint ownership, requiring prior partition. The 2019 decision clarifies that usufruct is not jointly owned, so no partition is necessary. Courts now follow this logic: the creditor can directly seize the usufruct share in the price.

In the future, one can expect creditors to use this route more often, and usufructuaries to seek to protect their right through clauses in deeds of gift or inheritance.

Key Points to Remember

FAQ on seizure of usufruct:

• Can I lose my usufruct because of a personal debt? Yes, a creditor can seize your usufruct and request the sale of the property. You will lose your right of use.
• Can the bare owner oppose the sale? No, but they will receive their share of the price (the bare ownership). They can, however, buy back the usufruct to avoid the sale.
• How is the value of the usufruct assessed? According to a tax scale based on age: 50% at 50, 30% at 60, 10% at 80. But an expert valuation may be necessary.
• What should I do if I am threatened with seizure? Consult a specialist lawyer in Torcy or Lagny-sur-Marne. You can negotiate a repayment plan or sell your usufruct amicably.

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 →