Usufruct and Bare Ownership: What the Aix-en-Provence Court of Appeal Says?

You own a house in Louhans and have decided, to organise your succession, to give the bare ownership to your children while retaining the usufruct. So far, nothing complicated. But what happens if one of the heirs wants to sell their share? And if the usufructuary wishes to rent out a room to make ends meet? These are questions I hear every week in my practice. The answer is not always intuitive.

Bare ownership (the right to dispose of the property, but not to use it) and usufruct (the right to use and receive the fruits, such as rents) are two components of property ownership. Their interplay is a source of many conflicts. A recent decision of the Aix-en-Provence Court of Appeal has set the record straight on this issue. It recalls fundamental principles that every owner or heir should know.

What risks do you face if you disregard these rules? A family conflict, costly proceedings, or worse, an impossible sale. This decision, handed down on 2 February 2024, provides essential clarifications. I share them with you in this article, with concrete examples.

The Facts: A Story Like Many Others

Mr. X, a retired man from Louhans, had bought a flat with his wife. After her death, he wanted to prepare his succession. He therefore gave the bare ownership of the flat to his two children, Marc and Sophie, while retaining the usufruct. Years pass. Mr. X, elderly and dependent, is placed in a nursing home. To fund his care, he decides to rent out the property. But the children object. Marc, himself a homeowner in Paray-le-Monial, believes the letting could depreciate the flat. Sophie, meanwhile, wishes to sell her share of the bare ownership to finance the purchase of a house.

Conflict erupts. The usufructuary (the father) applies to the tribunal judiciaire for permission to let. The children, as bare owners, ask for compensation for the use of the property by their father. The first instance rules in favour of the father: he may let without the children's consent, provided the property's purpose is respected. But the children appeal. The Aix-en-Provence Court of Appeal must decide.

The case is emblematic because it touches on the delicate balance between the rights of the usufructuary and those of the bare owner. Each party has strong arguments. The father relies on his need to fund his accommodation. The children fear a loss of value and interference with their right to dispose. The court must weigh these interests.

The Reasoning of the Court — Analysed

The judges of the Aix-en-Provence Court of Appeal relied on Articles 578 et seq. of the Civil Code (which define usufruct), as well as on previous case law. Their reasoning is in three parts.

First: the usufructuary has the right to use the property and to receive its fruits (rents), under Article 582 of the Civil Code. He can therefore let the property without the bare owner's consent, unless it amounts to an abuse. In this case, the father needed the rents for his care, which was a legitimate reason.

Second: the bare owner has a say in the preservation of the property. He can oppose a letting that would jeopardise the building (for example, letting to persons of ill repute, lack of maintenance). But in the absence of risk, he cannot prevent the letting.

Third: the court recalls that the bare owner cannot demand compensation for the usufructuary's enjoyment of the property, as long as the latter does not abuse it. The usufructuary has the right to live in the property without paying anything. Conversely, if the property is unoccupied, the bare owner cannot require the usufructuary to let it to make a profit.

This decision confirms consistent case law: the usufructuary's freedom is broad, but it is limited by the prohibition on abusing his right (Article 618 of the Civil Code, the obligation to enjoy as a prudent administrator). It is not a change in the law. The judges therefore dismissed the children's claim for compensation and upheld the father's right to let.

What This Means for You — Practically

If you are a usufructuary, you are free to occupy the dwelling, let it (even to a third party), receive the rents, or collect agricultural fruits. You must only ensure you do not commit an abuse: do not let at an abnormally low rent that would harm the property, or do not convert commercial premises into a dwelling without the bare owner's consent.

If you are a bare owner, you cannot oppose a simple letting, but you must be vigilant about maintenance. You can require major structural repairs (main building works) that are the usufructuary's responsibility. Additionally, if the usufructuary wishes to sell his usufruct, you have a right of pre-emption (priority to buy) fixed by law.

Take a concrete example: you own a property in Paray-le-Monial. The property's value is €200,000. The usufruct, for a usufructuary aged 70, is worth about 30% of the value, i.e. €60,000. The bare owner cannot sell the property without the usufructuary's consent, and vice versa. A joint sale is possible, but the price is split according to the value of the rights.

If you are in this situation, you should:
— As usufructuary: keep records of rents and charges to prove good management.
— As bare owner: inform the usufructuary of any plan to sell your bare ownership, as he has a right of pre-emption.

Four Tips to Avoid This Type of Dispute

• Draft a co-ownership or usufruct agreement before a notary: it sets out the rules on use of the property (letting, works, duration), preventing conflicting interpretations. A simple gift with reservation of usufruct is not always enough.
• Inform the bare owner regularly of your plans (letting, works). This creates transparency and defuses conflicts. A registered letter or email suffices.
• Have the value of the usufruct periodically estimated (tax scale of Article 669 of the General Tax Code) to anticipate a possible sale. This allows for smooth negotiation of a buyout of rights.
• In case of disagreement, prefer family mediation before going to court. A specialised mediator can find a balanced solution, often less costly than years of litigation.

Further Reading: Related Case Law and Developments

This decision fits into a consistent line of authority. The Court of Cassation had already held, in a judgment of 15 May 2019 (No. 18-11.542), that a usufructuary may let a property without authorisation, even if a bare owner child objects, provided the letting does not constitute an abuse. The Aix-en-Provence Court of Appeal applies the same principle here.

However, there is a recent trend towards strengthening the protection of the bare owner regarding the preservation of the property. For example, a judgment of the Versailles Court of Appeal of 12 January 2023 ordered a usufructuary to carry out major works for neglect. This means the bare owner must be proactive: if he notices a lack of maintenance, he can request an expert assessment and apply to the court.

For the future, the issue of seasonal lets (Airbnb) and the abuses they may cause is likely to be at the heart of future disputes. The courts will have to strike a balance between the usufructuary's right to profit from the property and the bare owner's right not to see his property turned into a hotel without his consent.

Key Points to Remember

FAQ:

• As a usufructuary, can I let the property without the bare owner's consent? Yes, as long as it does not constitute an abuse (letting at a very low rent, degrading occupation). You must inform the bare owner, but his consent is not required.
• Can the bare owner sell his share without my consent? Yes, he can sell his bare ownership to a third party, but you have a right of pre-emption on that sale. You can buy his share at a set price.
• Which works are the usufructuary's responsibility? Day-to-day maintenance repairs (painting, plumbing). The bare owner bears the cost of major repairs (roof, load-bearing walls). Check your agreement.
• If the usufructuary dies, what happens to the property? The bare ownership merges with the usufruct: the bare owner becomes full owner. No tax if it was a prior gift, otherwise inheritance tax.
• Can I give my usufruct to someone else? Yes, you can transfer your usufruct for valuable consideration or gratuitously, but you remain solely responsible for obligations towards the bare owner.

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