An heir repaid, from her own funds, the loan that had financed her father’s share in a building they owned together. On his death she claims a debt from the estate held in joint ownership (indivision). The Court of Appeal sets it at 132,387.47 € by applying the rule on compensation between spouses, article 1469 of the Civil Code, which guarantees at least the subsisting profit. On 4 March 2026 the Cour de cassation (the French supreme court for civil matters) quashed that ruling: between a father and his daughter there is neither a marital community nor a récompense; a co-owner’s expense to preserve the property is settled under article 815-13, which takes the higher of two sums, the expense made or the subsisting profit, but in equity, and with a subsisting profit computed in proportion to the contribution. Two neighbouring provisions, two different results, and at the heart of each a valuation of the property.
The facts
The deceased died on 5 July 1994 leaving three children. Difficulties arose in settling the estate. One of the heirs had bought a building in joint ownership with her father; the purchase of the father’s undivided share had been financed by a loan whose capital she repaid. She asks the estate to credit her with that expense.
The Colmar Court of Appeal, on 2 March 2023, set her claim at 132,387.47 € “as subsisting profit”, applying the computation rules of article 1469 of the Civil Code, the provision governing compensation between a spouse and the marital community. Her brothers appealed to the Cour de cassation: that provision does not apply to joint ownership between a father and his daughter.
The decision
The first civil chamber quashed the judgment (Cass. 1re civ., 4 March 2026, no. 24-10.269), under articles 815-13 and 1469 of the Civil Code. It recalled the first: “for expenses necessary to the preservation of the jointly owned property, which include the payment of instalments of the loan that enabled its acquisition, the co-owner must be credited, in equity, with the higher of the two sums represented by the expense made and the subsisting profit. The subsisting profit, which represents the enrichment brought to the joint estate, is determined according to the proportion in which the co-owner’s funds contributed to the preservation of the jointly owned property.”
Then the second: “the compensation is, as a rule, equal to the lower of the two sums represented by the expense made and the subsisting profit. It may not be less than the subsisting profit where the borrowed value was used to acquire, preserve or improve a property that is found, on the day of liquidation of the community, in the borrowing estate.”
The Court of Appeal applied the second provision whereas “those expenses gave rise only to an indemnity against the joint estate assessed under the rules of article 815-13 of the Civil Code”: it breached the first by refusing to apply it and the second by misapplying it. The case is remitted to the Besançon Court of Appeal for the computation of that claim alone.
What this changes for valuation
The right provision before the right figure. Paying the instalments of a loan that enabled the acquisition of the property is a preservation expense within article 815-13; the Court says so again. Between spouses under a community regime the same expense would give rise to a récompense under article 1469, with a floor at the subsisting profit where the funds served to acquire the property. Between ordinary co-owners, family members, unmarried partners, former spouses under separation of property or heirs, article 815-13 applies: the higher of the two sums, but “in equity”, which lets the judge moderate, and a subsisting profit computed in proportion to the funds contributed.
The subsisting profit is a proportion. In practice, a co-owner who repaid, say, 40 % of the purchase price through capital instalments contributed 40 % to the preservation of the property; the subsisting profit is 40 % of the value of the property at the date the claim is assessed, in principle the date of partition, or the date of separate enjoyment. If the property has gained value, the subsisting profit exceeds the expense and is the sum retained; if it has lost value, the nominal expense is. The rule therefore requires two valuations: the property at the date of acquisition, to fix the proportion, and at the date of partition, to quantify the enrichment.
Interest and insurance preserve nothing. Only repaid capital preserves the property; loan interest and insurance premiums are charges of enjoyment, generally borne by the occupant. The report separates capital and interest instalments from the amortisation table, which avoids inflating the proportion.
The report the notary and the judge expect. A market value at the date of partition, established under the French valuation charter (Charte de l’expertise en évaluation immobilière, 6th edition, November 2025, Title III, § 1.1) with dated comparables; the value at acquisition, rebuilt from the deed and the references of the time; the table of capital payments; the computation of the proportion and of the subsisting profit; finally the two sums side by side, expense made and subsisting profit, so that the judge exercises the equity assessment with full knowledge. What the valuer does not do is choose between the two: that is the judge’s task.
The same reasoning for works. Article 815-13 also covers improvement expenses, with the same rule of the higher of the two sums, and the Cour de cassation already applies the proportion to works financed by one co-owner. The method is identical: value of the property with and without the works, share of the gain due to the financer.
What the valuer takes from it
- Between co-owners not married under a community regime, a preservation expense is settled under article 815-13, not under the compensation of article 1469.
- Repaying the capital of an acquisition loan is a preservation expense; interest and insurance are not.
- The subsisting profit is a proportion: the co-owner’s share of the purchase funds, applied to the value of the property at the date of partition.
- Two valuations are needed, at acquisition and at partition; the report presents expense made and subsisting profit side by side.
- Equity belongs to the judge; the valuer supplies the two terms of the choice.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guides Leaving a family joint ownership in France and Inheritance: the house occupied by an heir and the glossary entries indivision and récompense complement this article. On the same theme: Matrimonial compensation: personal benefit required, funds presumed common and Divorce compensation for works on separate property: the formula. The decision is available on Légifrance.
What next
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