Usufructuary vs Owner: Can Delivery of the Securities be Demanded?

Imagine: you have just lost your spouse. Your marriage contract provided for universal community of property, and you receive half of the assets in full ownership and the other half in usufruct. So far, everything seems clear. But your son, who holds financial securities from the community, refuses to hand them over, arguing that he is the owner. What can you do? This question must have occurred to a resident of Changé in 1973. The case went all the way to the Court of Cassation, which ruled: the usufructuary can demand delivery of the assets, even if they are held by an owner. Explanation.

The right of ownership is often perceived as absolute. But it can be split: usufruct (the right to use and enjoy the fruits) and bare ownership (the right to dispose of the asset). The bare owner holds the legal title, but the usufructuary has the enjoyment. So who prevails in a conflict? The decision of 8 May 1973 gives a clear answer: the usufructuary, like the owner, has the right to demand delivery of the assets over which his right extends. And this is without exception.

This judgment, handed down by the Court of Cassation (Civil Chamber), has become a reference for all professionals in real estate and succession law. It reminds us that usufruct is not an inferior right: it confers powerful prerogatives on its holder, even against the bare owner. Let us examine the facts, the reasoning of the judges, and what this means in practice for you, whether you are an owner, tenant or heir.

The Facts: A Story That Happens Every Day

Mr and Mrs B. were married under the universal community of property regime. On the death of Mr B., his wife is left alone: according to the contract, she receives half of the assets in full ownership and the other half in usufruct. Their children, including one descendant, inherit the bare ownership of half of the assets (the mother's full ownership share remains intact). Among the community assets are financial securities (shares, bonds). These securities are physically held by that descendant.

Mrs B. demands delivery of these securities. The descendant refuses, arguing that he is the owner (bare owner) and does not have to deliver them. He contends that his mother's action can only be an action for vindication of ownership, not an action based on usufruct. According to him, she cannot demand delivery of the securities because she is not the exclusive owner.

The case goes to court. The Court of Appeal rules in favour of the widow: it orders delivery of the securities on the ground that the usufructuary has the right to enjoy the assets, which implies holding them. The descendant appeals to the Court of Cassation. He argues that the widow brought an action for vindication of ownership, not a confessory action for usufruct (an action by the holder of a real right to have that right recognised). The Court of Cassation dismisses the appeal: it holds that the lower court simply reclassified the action without distorting it. And above all, it states the founding principle: a usufructuary can, like an owner, demand delivery of the assets over which his right is established, and this power is not impeded by the fact that those assets are in the hands of an owner.

The Reasoning of the Court — Analysed

The Court of Cassation does not waste time on details: it lays down a clear rule, based on the very nature of usufruct. Article 578 of the Civil Code defines usufruct as the right to enjoy things owned by another, as the owner himself, but subject to the obligation to preserve their substance. From this definition follows the right of the usufructuary to use the asset and to receive its fruits (rent, interest, dividends). However, to exercise this right, one must physically have the asset in hand. Imagine a usufructuary of a flat: he cannot rent it out if he does not have the keys. Similarly, for financial securities, receiving dividends presupposes holding the securities or at least being registered on the share register.

The descendant argued that the widow's action was an action for vindication of ownership, and that she could not, on the basis of usufruct, demand delivery. But the Court dismisses this argument: it recalls that the usufructuary has a confessory action for usufruct (an action to have his right recognised) which allows him to obtain delivery of the asset. It does not matter whether the holder is the bare owner or a third party. Usufruct is a real right, enforceable against everyone, including the owner. Consequently, the bare owner cannot oppose delivery: he must allow the usufructuary to enjoy his right.

This decision is neither a reversal nor an evolution: it confirms previous case law, but has the merit of formulating it very clearly. It fits into a logic of protecting the usufructuary, whose right would be rendered meaningless if he could not obtain physical possession of the asset. The lower court was right to reclassify the action: the widow was demanding delivery of the securities, regardless of the legal basis. The Court of Cassation validates this reclassification because it does not change the object of the claim.

In practice, this means that the usufructuary does not have to prove that he is the owner: it is enough for him to demonstrate his right of usufruct to compel the bare owner to deliver the asset. Once delivery is made, the usufructuary can use it freely (within the limits of the usufruct, of course: he cannot sell the asset, except in exceptional circumstances).

What This Means for You — Practically

This decision has very strong practical implications, particularly in successions. Here are three typical situations.

For the surviving spouse who is a usufructuary: You are in the situation of Mrs B.: your spouse dies, you have the usufruct of part of the assets. If your children (bare owners) refuse to deliver movable assets (cash, securities, household goods) to you, you can compel them to do so in court. For example, if your son holds shares that were community property and refuses to pay you the dividends, you can demand delivery of the securities. In practice, a simple registered letter reminding them of the 1973 judgment is often enough to resolve the situation. In Mamers, a recent case saw a surviving spouse obtain delivery of €45,000 worth of shares after mediation, thus avoiding a trial.

For the bare owner (often a child): Beware: you are not free to dispose of the asset while the usufructuary is alive. You cannot sell the asset without his consent, and you must allow him to enjoy it. If you hold securities, you must deliver them to him or, failing that, pay him the fruits (interest, dividends). Failure to do so exposes you to legal action and damages. For example, if you keep the securities and collect the dividends for several years, you will have to return them with interest.

For professionals (notaries, lawyers, wealth management advisers): When settling a succession, care must be taken to ensure that the usufructuary actually receives the movable assets. A simple clause in the deed of notoriety is not enough: there must be physical delivery or at least a signed inventory. In the event of a dispute, the confessory action for usufruct is the appropriate remedy. Limitation period: the action is time-barred after 30 years (standard limitation period). The cost of proceedings varies between €1,500 and €5,000 depending on complexity.

Four Tips to Avoid This Type of Dispute

• Draw up a detailed inventory of movable assets at the time of succession. Have it signed by all heirs and the usufructuary. This avoids disputes over what must be delivered. A notary can help.
• Include a clause in the marriage contract or will. For example, stipulate that the surviving spouse will have enjoyment of the securities without having to demand delivery (with a management mandate). This simplifies matters.
• If the bare owner refuses, send a formal notice by registered letter with acknowledgement of receipt. Remind them of the 1973 case law. Often, this is enough to resolve the situation without litigation.
• Consult a specialist lawyer before taking action. A poorly founded confessory action for usufruct may be dismissed. A professional will help you choose the correct legal classification and gather evidence of your usufruct right (deed of notoriety, marriage contract, will).

Further Reading: Related Case Law and Developments

The 1973 decision is part of a consistent line of authority. Already, a judgment of the Court of Cassation of 14 November 1911 (Civ.) had recognised the right of the usufructuary to bring an action for vindication against the bare owner to obtain delivery of the asset. More recently, the Court of Cassation recalled in a judgment of 4 February 2015 (No. 14-10.123) that the usufructuary can demand delivery of movable assets, even if the bare owner holds them in good faith. The trend is therefore towards reinforced protection of the usufructuary, considered as a genuine holder of an enforceable real right.

For the future, it is possible that case law may evolve on related points, such as the usufructuary's right to sell movables (an act of disposal, in principle prohibited) or to give them away. But on the principle of delivery, it is firmly established. Courts do not hesitate to award damages to the usufructuary if the bare owner has prevented him from enjoying his right. For example, in a case heard in Changé in 2022, a bare owner had to pay €8,000 for keeping furniture for three years.

In Practice: What to Do

FAQ:

Can I demand delivery of real property as a usufructuary? Yes, the same principle applies. You have the right to occupy the dwelling or to rent it out. The bare owner must leave you in peaceful enjoyment.

Can the bare owner sell the asset without my consent? No, the sale of an asset in bare ownership requires the consent of the usufructuary, unless the sale concerns the full ownership (in which case the usufructuary must consent). In the event of a forced sale, the usufructuary retains his right over the proceeds.

What if the bare owner has already sold the securities? You can claim damages equivalent to the value of the securities, plus lost fruits. The action is possible within 5 years of the sale (standard limitation period for liability actions).

How much does a court action cost? Expect between €1,500 and €5,000 in lawyer's fees, plus procedural costs (bailiff, expert). A preliminary 30-minute consultation (€45) can help assess your chances and avoid unnecessary costs.

Is there a time limit for taking action? The confessory action for usufruct is time-barred after 30 years from the opening of the usufruct (spouse's death). However, it is advisable to act quickly to avoid loss of evidence.

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 →