Usufruct and Eviction: When the Court of Appeal Rules on the Merits Without Amending the Order

Imagine the scene: in Sartène, Corsica-du-Sud, a family home is the subject of eviction proceedings. The occupant, Ms A., claims to be a usufructuary (right to enjoy a property without being the owner) by virtue of her mother's will. But the owner, an heir, argues that this legacy exceeds the disposable portion (the part of the estate that can be freely given) and therefore Ms A. has no right to stay. Who can decide this question? The enforcement judge, seized to enforce the eviction, or must another trial be awaited?

This is precisely the question the Court of Cassation decided on 24 September 2015. It held that the enforcement judge, and the Court of Appeal hearing an appeal from his judgment, can verify the existence of a real right (such as usufruct) without amending the order of the court decision that serves as the basis for the eviction. In other words, if the occupant claims to have a title, the enforcement judges can decide whether it exists or not, without having to change the initial judgment.

This decision is essential for all owners faced with an occupant who invokes a real right to remain in the premises, and for the occupants themselves, who must prove that right before the appropriate judge. In Bonifacio as elsewhere, it clarifies a procedural grey area that could block evictions for years.

The Facts: A Story Like Many Others

Ms A., aged 62 at the time of the events, lived in a house in Sartène. The house had belonged to her mother, Ms X., who died in 1996. By holographic will (handwritten) dated 28 November 1996, the mother bequeathed to her daughter "the disposable portion of her estate, including the usufruct of the house". Usufruct is a real right that allows the use of the property and receipt of its fruits (rents) without being the owner. But this legacy, valued at €64,000, exceeded the disposable portion, limited to €41,593.20.

The other heirs (Ms A.'s siblings) therefore contested the will. A judgment of the Tribunal de grande instance of Ajaccio reduced the bequest of usufruct (i.e., it was annulled to the extent it exceeded the disposable portion). Ms A. was then ordered to leave the premises. But she remained, claiming her usufructuary right which she considered valid. The owner therefore initiated eviction proceedings before the enforcement judge of Bastia.

Before the enforcement judge, Ms A. argued that she held a right of usufruct, which allowed her to stay in the premises. The enforcement judge dismissed this claim, considering that the usufruct had been reduced by the previous judgment. Ms A. appealed, and the Bastia Court of Appeal upheld the decision. It held that Ms A. was not entitled to the usufruct because the legacy exceeded the disposable portion. Ms A. then appealed to the Court of Cassation, arguing that the Court of Appeal, by ruling on the existence of the usufruct, had modified the order of the initial judgment, which was outside its jurisdiction.

The Reasoning of the Court — Analysed

The Court of Cassation dismissed Ms A.'s appeal, thereby validating the reasoning of the Bastia Court of Appeal. To understand, we must recall the role of the enforcement judge. This judge has jurisdiction to decide disputes arising in the context of the enforcement of a court decision (Articles L. 213-6 of the Code of Judicial Organisation and L. 121-1 et seq. of the Code of Civil Enforcement Procedures). When an occupant claims a real right (usufruct, right of use, etc.) that would allow them to remain despite an eviction order, the enforcement judge must verify the existence of that right. In doing so, he does not modify the order of the decision serving as the basis for enforcement (here, the judgment reducing the legacy): he merely determines whether, at the time of eviction, the occupant has a title to remain.

The Court of Cassation therefore held that the Court of Appeal, hearing the appeal from the enforcement judge's judgment, had exactly the same power: it could rule on the existence of the usufruct without amending the order of the initial judgment. In this case, it had found that the bequest of usufruct exceeded the disposable portion (Article 913 of the Civil Code limits gifts in the presence of reserved heirs) and that, consequently, Ms A. was not entitled to this right. It therefore did not modify the initial decision: it simply applied the consequences of that decision.

This reasoning follows consistent case law: the enforcement judge is the judge of obstacles to enforcement. He may examine all causes preventing eviction, including real rights, without encroaching on the authority of res judicata. This is a confirmation of the solution already adopted in a decision of 17 December 2008 (No. 07-21.617).

What This Changes for You — Practically

For landlord owners, this decision is a powerful tool. If you obtain an eviction order and the occupant invokes a real right (usufruct, right of use, personal easement), you can apply to the enforcement judge to resolve the dispute. No need to start a new trial on the merits: the enforcement judge can decide. In Bonifacio, let's take a concrete example: an owner obtained a judgment in 2023 ordering the eviction of a tenant. The latter claims to have a lifetime usufruct granted by the former owner. The enforcement judge examines the title and, if he finds it fraudulent or non-existent, orders eviction. Time saved: 6 to 12 months, compared to 2 to 3 years for a new trial on the merits.

For occupants, caution: if you invoke a real right, you must provide certain proof. A simple undated document or an ambiguous will will not suffice. The enforcement judge will assess it with full discretion. If you lose, you will be evicted without further recourse on this point.

For buyers, this decision reminds of the importance of checking real rights encumbering the property before purchasing. A property sale in Sartène may hide an unregistered usufruct. Consult a notary and require an eviction warranty.

Four Tips to Avoid This Type of Dispute

• Have wills drafted by a notary: a holographic will, even valid, can be a source of interpretation. A notary will help you respect the disposable portion and avoid disputes between heirs.
• Register your real rights with the land registry: usufruct, easement, right of use. Official registration makes your right enforceable against third parties and facilitates proof in court.
• Keep all deeds of gift or legacies: in case of dispute, you will need to produce the original will, the death certificate, and any document proving the date and intention of the deceased.
• Consult a lawyer before starting eviction proceedings: the choice of jurisdiction (enforcement judge or judicial court) is crucial. A lawyer specialised in property law will save you costly procedural errors.

Further Reading: Related Case Law and Developments

This decision is part of a line of cases strengthening the powers of the enforcement judge. Already, in a decision of 17 December 2008 (No. 07-21.617), the Court of Cassation held that the enforcement judge could find the extinction of a real right by confusion. More recently, in a decision of 12 January 2022 (No. 20-18.675), it specified that the enforcement judge could interpret the enforcement order to determine the rights of the parties, without modifying it.

The trend is therefore towards an extension of the enforcement judge's powers, in order to concentrate disputes before a single judge and speed up procedures. In the future, it can be expected that enforcement judges will be increasingly called upon to decide substantive questions, provided they are linked to enforcement. Owners gain efficiency, but occupants must be extra vigilant: the enforcement judge is not a judge of the merits, but he can rule on real rights, with irreversible consequences.

Key Points to Remember

FAQ:

• Can the enforcement judge annul a usufruct? No, he cannot annul the title that created the usufruct (a judgment or notarial deed). But he can find that the usufruct does not exist, for example because the legacy exceeds the disposable portion.
• Can I challenge an eviction by invoking a right of use? Yes, but you must prove it before the enforcement judge. If you fail, the eviction will be upheld.
• What are the time limits for acting? Once eviction is ordered, you generally have two months to leave. If you challenge before the enforcement judge, the procedure may take 3 to 6 months.
• What should I do if I am an owner and the occupant claims a usufruct? Apply to the enforcement judge to resolve the dispute. Do not attempt eviction yourself, as that would be illegal.
• Does this decision apply to other real rights (easement, use)? Yes, the same reasoning applies to any real property right.

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