Reference decision: cc • N° 90-20.384 • 1992-05-14 • View the decision →
Imagine: you are in Toul, in the family home inherited from your parents. Your brother, the bare owner, wants to sell the full ownership to recover his share. But you, the usufructuary, live there. Can he force you to sell against your will? Until 1987, the law allowed the judge to order the sale, even if the usufructuary objected. But a reform intervened, and the Court of Cassation ruled in 1992: henceforth, the usufructuary has a say. Explanations.
The facts: a story that happens every day
Mr X, owner of a building in Nancy with his wife, died in 1975. His widow inherited a quarter in full ownership and three quarters in usufruct. In 1985, the children, bare owners, asked the Nancy court to sell (auction) the building in full ownership. The widow opposed it, invoking her usufruct right. The Tribunal de Grande Instance of Nancy ordered the sale in 1989, considering that the old law (prior to 1987) applied. The widow appealed. The Nancy Court of Appeal confirmed in 1990. She appealed to the Court of Cassation.
The reasoning of the court — dissected
The Court of Cassation quashed the Court of Appeal's decision. It recalled that Article 815-5, paragraph 2, of the Civil Code, resulting from the law of 6 July 1987, provides that the judge cannot, at the request of a bare owner, order the sale of the full ownership of a property burdened with a usufruct against the will of the usufructuary. The question was: does this law apply to usufructs created before 1987? The Court answered yes, subject to judicial decisions that have become final or amicable agreements concluded before that date. In this case, the usufruct dated from 1975, but no final decision had been rendered before 1987. Therefore, the new law applies. The Court of Appeal should have respected the will of the usufructuary. This is a confirmation of the rule of immediate application of new laws to ongoing situations, except for rights already established by an irrevocable decision.
What this changes for you — concretely
If you are a usufructuary (you have the right to use the property and receive its income), you can no longer be forced to sell your right against your will, even if the bare owner insists. Example: in Nancy, an 80-year-old usufructuary can stay in his home without fear of a forced sale decided by his children. For bare owners, this means you will have to negotiate with the usufructuary or wait for the extinction of the usufruct (often upon death). If you are a buyer, check for a usufruct: without the usufructuary's agreement, you can only acquire full ownership by the usufructuary's renunciation or death. In practice, if you are a bare owner and the usufructuary refuses the sale, you can ask the judge for permission to sell only the bare ownership (without the usufruct), but this reduces the price.
Four tips to avoid this type of dispute
- Draw up a co-ownership agreement: before any conflict, sign a written agreement specifying the rights of each (usufructuary and bare owner) regarding the management and possible sale of the property.
- Consult a notary or specialised lawyer as soon as the death occurs to assess the situation. In Nancy, Maître Zakine can help you anticipate blockages.
- Negotiate an amicable sale: offer the usufructuary a sum of money (for example, 30% of the property's value) in exchange for renunciation of the usufruct. This avoids a trial.
- Consider a partial partition: if the property is divisible, sell part in bare ownership and retain the usufruct over the remainder. This solution is often more acceptable to the usufructuary.
Further reading: related case law and developments
Before 1987, the Court of Cassation allowed the forced sale in full ownership against the usufructuary (Civ. 1re, 20 November 1979). The 1987 law reversed the rule. Since then, case law has clarified that the usufructuary cannot abuse his right to harm the bare owners (Civ. 1re, 11 February 2009). The trend is towards protection of real rights (usufruct) but with a control for abuse of rights. In the future, judges may have to arbitrate conflicts where the usufructuary refuses any sale while the property deteriorates due to lack of maintenance.
Frequently asked questions
Can I sell a property of which I am the bare owner without the usufructuary's consent? Yes, you can sell your bare ownership separately, but the buyer will have to respect the usufruct until its extinction. To sell the full ownership, the usufructuary's agreement is necessary.
What if the usufructuary refuses any sale while the property deteriorates? You can apply to the judge for a protective measure (expert report, urgent works). In case of serious failure, the judge can order the sale for abuse of right by the usufructuary.
What are the time limits for action? The limitation period is 5 years to challenge a judicial decision of forced sale. But it is better to act quickly as soon as the conflict arises.
What is the cost of a procedure? Expect between €1,500 and €5,000 in lawyers' fees depending on complexity, plus court costs (expert reports, etc.).
Are you 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 →
📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
→ Prendre rendez-vous pour une consultation |
→ Browse all our legal articles
