Usufruct: Forced Sale of Full Ownership Prohibited Against the Will of the Usufructuary (Cass. civ. 13 Dec. 1989)

Imagine: you own a flat in Dijon, in the Grésilles district. You have the usufruct (the right to use it and collect the rent), while your daughter-in-law is the bare owner (she owns the property but not the enjoyment). One day, she sues you to force the sale of the flat so she can recover her share in cash. She invokes a recent law, the law of 6 July 1987, which would allow a judge to order the sale of full ownership even against the will of the usufructuary.

Is this legal? Can a judge really dispossess you of your usufruct against your will? This is the question the Court of Cassation decided on 13 December 1989, in a ruling that still stands as authority today.

This decision, concerning a property in Quetigny, near Dijon, protects the usufructuary from any forced sale of full ownership, except in the context of a partition. It recalls that rights acquired before the new law came into force are inviolable, especially when a court decision has already become final.

The Facts: An Everyday Story

Mr X, a retired man from Dijon, had married Ms Y as his second wife. From his first marriage, he had a daughter, Fabienne. From his second marriage, another daughter, Isabelle. Upon his death, he bequeathed the usufruct of his house in Quetigny to his widow, Ms Y, and the bare ownership to his two daughters. Fabienne, unhappy not to be able to dispose of the property, sues her stepmother before the Tribunal de Grande Instance of Dijon to obtain the sale of full ownership (i.e., the sale of the house in its entirety, usufruct and bare ownership combined) and the division of the proceeds.

The tribunal, and then the Court of Appeal of Dijon, reject her claim. For the judges, the principle is clear: the usufructuary cannot be compelled to sell their right against their will, except in the context of a succession partition. However, this is not a partition but a forced sale requested by a bare owner. Fabienne, who is not a usufructuary, has no right to demand the sale.

But in the meantime, a new law (Law No. 87-498 of 6 July 1987) came into force. It allows the judge, for certain usufructs, to order the sale of full ownership if the interests of all parties justify it. Fabienne appeals to the Court of Cassation, invoking this law. The Court of Cassation, in its judgment of 13 December 1989, dismisses her appeal. Why? Because the new law does not apply to proceedings already pending before the Court of Cassation. And above all, because a judicial decision had already become final before the law came into force. The widowed usufructuary therefore retains the usufruct of the house in Quetigny, which her stepdaughters cannot take from her.

The Court's Reasoning — Analysed

The Court of Cassation relies on Article 2 of the law of 6 July 1987. This provision states that the law applies to usufructs existing at its date of entry into force only in the absence of a judicial decision that has become final (i.e., a decision no longer subject to appeal or cassation). In the Quetigny case, the Court of Appeal of Dijon had already rendered a definitive judgment before the law was enacted. That judgment had rejected the request for sale. The law could therefore not overturn that decision.

Next, the Court recalls the prior law: a judge cannot, except in the context of a partition, authorise the sale of full ownership of a property burdened with a usufruct against the will of the usufructuary. This is a fundamental principle: usufruct is a real right (a right over the thing) that confers on its holder the exclusive enjoyment of the property. The bare owner, on the other hand, only has ownership stripped of enjoyment. They cannot compel the usufructuary to sell, as that would amount to ousting them from their right.

By dismissing the appeal, the Court of Cassation confirms the position of the Court of Appeal. It does not create new law, but it recalls an inviolable principle: the will of the usufructuary to retain their usufruct prevails over the bare owner's interest in recovering their share in cash. This is a protective decision for the usufructuary, who can thus continue to live in or rent out the property peacefully.

What This Means for You — Practically

If you are a usufructuary (for example, you have the usufruct of a house in Dijon after the death of your spouse): this decision protects you. A bare owner (often a child or heir) cannot force you to sell the property against your will, unless the sale is requested in the context of a succession partition (for example, if you also own part of the property). You have the right to remain in the property or collect rent until the end of your usufruct.

If you are a bare owner (for example, you have inherited the bare ownership of a flat in Quetigny): you cannot demand the sale to recover your share. You must wait until the end of the usufruct (death of the usufructuary, renunciation, etc.) to become full owner. Any legal action to obtain a forced sale is doomed to fail, unless you can prove abuse by the usufructuary (for example, if they wilfully let the property deteriorate). But beware: abuse is difficult to prove.

Numerical example: Take a property in Dijon worth €200,000. The usufructuary is 70 years old. Their share of the usufruct (according to the tax scale) is worth about 40% of the value, i.e., €80,000. The bare owner's share is €120,000. If the bare owner wanted to sell to recover their €120,000, they cannot. They must wait until the death of the usufructuary to become full owner and then sell the property at its full value.

Four Tips to Avoid This Type of Dispute

• Draft a precise usufruct agreement: When making a gift or will, provide for the management arrangements, charges, and any conditions for sale. If you want the property to be sold during the usufructuary's lifetime with their consent, state it clearly.
• In case of conflict, prefer mediation: Before starting court proceedings, try family mediation. A mediator can help reach an agreement: for example, the bare owner buys out the usufruct from the usufructuary, or the usufructuary agrees to a sale in exchange for an annuity.
• Consult a lawyer from the gift planning stage: A lawyer specialising in property law, such as Maître Zakine, can advise you on the best legal structure to avoid future deadlocks. For example, you could opt for a gift with a reserved usufruct, but include a clause for joint sale.
• Check prior decisions: If you are a bare owner and a court decision was already rendered before 1987, note that the 1987 law cannot overturn it. Do not base your action on that law if the dispute is older.

Further Analysis: Related Case Law and Developments

Before the 1987 law, case law was consistent: a judge could not order the sale of full ownership against the will of the usufructuary, except in cases of partition. The 1987 law introduced an exception: the judge may, at the request of the bare owner, order the sale if the interests of all parties justify it, for example, in case of agreement or economic necessity. However, this law only applies to usufructs created after its entry into force, or to existing usufructs if no judicial decision has been made.

In a later judgment (Civ. 1re, 23 March 1994, No. 92-16.354), the Court of Cassation clarified that the 1987 law also does not apply to proceedings pending before the lower courts. Thus, the protection of the usufructuary remains strong.

The tendency of the courts is therefore to protect the usufructuary against the wishes of the bare owner. However, in practice, judges may authorise a sale if the usufructuary consents or if the usufruct is being abused. For the future, it is possible that the legislature will relax the rules, but today, the position of the Court of Cassation is clear: no forced sale without the usufructuary's consent, except in a partition.

In Practice: What to Do

FAQ:

1. As a bare owner, can I force the sale of a property burdened with a usufruct? No, unless the sale is requested in the context of a succession partition. You must wait until the end of the usufruct.

2. What if the usufructuary lets the property deteriorate? You can apply to the court for abuse of usufruct. The court may then order the sale of full ownership or require repairs.

3. Can the 1987 law help me if the usufruct was created after 1987? Yes, for usufructs created after 9 July 1987, the law allows the judge to order the sale if the interests of all parties justify it. But case law is strict: there must be a serious reason.

4. What are the time limits for legal action? The limitation period for an action for forced sale is five years from the creation of the usufruct. But if the usufructuary refuses to sell, the action is often doomed.

5. Can I sell my usufruct alone to a third party? Yes, the usufructuary can sell their usufruct to a third party. But this does not change anything for the bare owner: the new usufructuary continues to enjoy the property.

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