A bank, creditor of a guarantor, registers mortgages on property he holds jointly with his sister, then sues both for partition and for a court-ordered auction (licitation, the sale of jointly owned property by auction so that the proceeds can be divided). The Lyon court of appeal orders the auction of co-ownership lots, a house on nearly 4,000 square metres and a set of built plots, at reserve prices of 50,000, 165,000 and 110,000 euros, on the ground that the co-owners disagree on how to divide. On 5 February 2025 the Cour de cassation (the French supreme court for civil matters), in a reported decision, quashed: the auction “must be ordered only if [the properties] cannot easily be divided in kind”, and the judge had to examine, if need be of its own motion, “whether the jointly owned property could or could not conveniently be divided in kind”. The co-owners’ disagreement is not enough. It is a question of valuation and of composing lots, and the valuer’s report is its central document.
The facts
A 2012 judgment orders a company and its director, as guarantor, to pay various sums to a bank. The bank registers several judicial mortgages on property owned jointly by the director and his sister, then sues them for partition of the joint ownership and auction of the jointly owned property.
The Lyon court of appeal, on 23 February 2021, orders the opening of the accounts, liquidation and partition, appoints a notary, finds that an amicable partition is impossible for want of agreement between the co-owners on how to proceed, and orders the sale by auction before the court of three sets of property: lots in a co-owned building at a reserve price of 50,000 euros, a plot with a house and outbuildings of 3,984 square metres at a reserve price of 165,000 euros with the option of lowering it by a quarter, and a set of plots with old buildings at a reserve price of 110,000 euros, with the same option. The brother appealed: an auction may be ordered only if the property cannot easily be divided or allocated, and the court found nothing of the kind.
The decision
The first civil chamber quashed, under article 1377, first paragraph, of the Code of Civil Procedure (Cass. 1re civ., 5 February 2025, no. 21-15.932, reported). “It follows from that provision that the auction of jointly owned buildings must be ordered only if they cannot easily be divided in kind.”
To order the auction, the ruling relied, by adopted reasons, on the absence of agreement between the co-owners on how to carry out the partition. “In so deciding, without examining, as it was bound to, whether the jointly owned property could or could not conveniently be divided in kind, the court of appeal deprived its decision of a legal basis.” The quashing covers the auction and its terms; the opening of the partition proceedings and the appointment of the notary stand. The case is sent back to the Lyon court of appeal, differently composed.
What this changes for valuation
The question asked before any forced sale. Division in kind is the rule, auction the exception. Before sending property to auction, the judge must know whether it can be shared between the co-owners in lots of equal value, or allocated to one of them with an equalising payment, and that question is first a valuation question. The valuer’s report gives the value of each property, examines whether the whole can be divided into balanced lots, and proposes one or more compositions, with the equalising payment each implies. The glossary recalls what a licitation is and why it differs from an ordinary sale.
Three properties, two co-owners: the division takes shape. Here the joint estate comprises co-ownership lots, a house with land and old built plots, for two co-owners in equal shares. Two lots of equal value can be conceived, for instance the house on one side, the co-ownership lots and the plots on the other, with an equalising payment to adjust; or one property allocated to each and the third sold privately. The report quantifies those scenarios, states the constraints, easements, access, condition of the buildings, cadastral division to be carried out, and lets the judge choose. The guide on leaving a family joint ownership describes those scenarios.
The reserve price is not the value. Where the auction is nonetheless ordered, the reserve price is set on the basis of the expert valuation, but it is generally lower, here with the option of lowering it by a quarter if there are no bids. A sale before the court at a low reserve price, without commercial marketing, exposes the joint estate to a price below market value; that is one of the reasons why division in kind or a private sale must be examined first. The valuation report gives the market value and, separately, the reserve price it recommends, with the discount the method of sale justifies. The article on the reserve price in a mortgage enforcement sale deals with the same gap.
A creditor may bring about the partition, not choose its form. The bank acted as creditor of a co-owner, under article 815-17 of the Civil Code. That capacity allows it to bring about the partition, but it does not change the rule: division in kind remains the priority, and the judge must ensure it of its own motion. The valuer appointed in that context works for the judge, not for the creditor, and the report deals with the question of division in kind as seriously as if the co-owners had raised it.
What the valuer writes. The useful conclusion is not only “the house is worth 200,000 euros”, but “the property is, or is not, conveniently divisible in kind, for the following reasons”, with the proposed lots and their values, the equalising payment, and the physical or legal obstacles to division. That reasoned conclusion is what the Cour de cassation requires of the judge; it expects the valuer to supply the elements on which to base it. The article on the notice to sell a jointly owned dwelling shows another limit to unilateral initiatives within a joint ownership.
What the valuer takes from it
- An auction is ordered only if the buildings cannot conveniently be divided in kind; the judge checks this, if need be of its own motion.
- The co-owners’ disagreement on how to divide is not enough to justify an auction.
- The valuation report values each property and proposes lots or allocations with an equalising payment, with the obstacles to division.
- The reserve price is set on the basis of the valuation but stays below market value; the report gives both.
- A co-owner’s creditor may bring about the partition, without defeating the priority of division in kind.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Leaving a family joint ownership in France and the glossary entries licitation, soulte and indivision complement this article. On the same theme: Notice to sell a jointly owned home: all co-owners, or nothing and Preferential allocation: the soulte is due only at partition. The decision is available on Légifrance.
What next
A deadlocked joint ownership, several properties, and an auction one of the co-owners wants to avoid?
I value each property, propose lots of equal value or an allocation with an equalising payment, and set out why a division in kind is or is not convenient, in a report the court can follow before ordering an auction.
Free quote, by email or by phone. No commitment before the quote is accepted. Fees are never linked to the value of the property (Charte de l’expertise, Title I, §2.1).
