A mother, usufructuary of a property of which her two sons are bare owners, lets one of them occupy part of the house free of charge, for private and professional use, from 1971 until her death in 2015. At the partition, the other son asks for the rapport of that advantage (rapport, the bringing back of gifts into the estate for equal division). The Poitiers court of appeal sets it at 261,536.49 euros: the rents that should have been paid, assessed on the condition of the property in 1972, less the repairs and maintenance costs that fell on the usufructuary. The housed son objects: his mother would have had to borrow to finance works, and he himself paid for major repairs. The Cour de cassation (the French supreme court for civil matters), on 2 March 2022, in a reported decision, rejects those grounds: the occupant, “in that he combined the duties of a tenant […] and the obligations arising from bare ownership”, could not claim reimbursement of major repairs, which fell on him as bare owner, and he was “liable for a rapport indemnity equal to the rents that should have been paid had the premises been let, after deduction of only the amount of the repairs and maintenance costs normally borne by the usufructuary”. For the valuer, this is a retrospective rental value assignment over forty-four years, with a clear rule on what is deducted.
The facts
A widowed owner keeps the usufruct of a property of which her two sons hold the bare ownership. From January 1971 she grants one of them the free use of part of the house, as a dwelling and for his professional activity. She dies on 8 February 2015. The other son sues his brother for partition.
The Poitiers court of appeal, on 9 September 2020, holds that the occupying son received an indirect advantage, through rent-free provision, from January 1971 until the death, and orders him to bring back 261,536.49 euros, computed “excluding inflation” by deducting, from the rents that should have been paid given the condition of the property in 1972, assessed at 168.51 euros a month, the amount of the repairs and maintenance costs normally borne by the usufructuary. It also holds that the other son is creditor of a management indemnity of 92,600 euros against the estate. The occupying son appealed.
The decision
The first civil chamber rejects the first two grounds (Cass. 1re civ., 2 March 2022, no. 20-21.641, reported). On the principle, the court of appeal, which found that the mother had granted the free use of part of the house “with a donative intent” and that it was not shown that the building was not, at that time, fit to be let, gave a legal basis to its decision. On the amount, the occupant, “in that he combined the duties of a tenant, to which his position as occupant assimilated him, and the obligations arising from the bare ownership of the building, could not claim from the usufructuary the reimbursement of works which, while constituting repairs other than tenant’s repairs placed on the landlord by article 1720 of the Civil Code, fell within the field of major repairs allocated to the bare owner by article 605 of the same code”. He was therefore “liable for a rapport indemnity equal to the rents that should have been paid had the premises been let, after deduction of only the amount of the repairs and maintenance costs normally borne by the usufructuary”.
The ruling is, however, quashed on the management indemnity awarded to the other son, because there is no joint ownership between a usufructuary and a bare owner, whose rights are of a different nature; the case is sent back on that point to the Bordeaux court of appeal.
What this changes for valuation
The advantage is measured by the rents not received. Free housing granted by the deceased to an heir, with donative intent, is an indirect gift subject to rapport; its amount is the deceased’s impoverishment, that is, the rents she would have received had she let. The valuer therefore establishes the rental value of the premises occupied, period by period, with the rent references of each period, and in the condition of the property at each date. Here, the court of appeal adopted a constant monthly rent based on the 1972 condition, “excluding inflation”; a finer report distinguishes periods, but the method is the same. The glossary describes valeur locative and its computation.
What is deducted, and what is not. From the notional rent are deducted the charges the landlord would have borne, but only those that fell on the deceased as usufructuary: the maintenance repairs of article 605. Major repairs, roof, walls, structure, fall on the bare owner, and the occupant who paid for them paid on his own account. He cannot deduct them, even though an ordinary landlord would have borne them. The report therefore classifies the works carried out during the occupation into two columns, maintenance and major repairs, from the invoices and the list in article 606, and deducts only the first.
A hypothetical loan does not enter the account. The occupant argued that his mother would have had to borrow to finance the works making the property lettable, and that the interest on that loan should be deducted. The Court does not accept it: once the property was fit to be let, the rents not received measure the impoverishment, without reconstructing a fictitious financing. The valuer therefore checks the condition of the property at the start of the occupation, with the documents of the time, because that question, lettable or not, conditions everything else. The article on the occupation indemnity between co-owners describes a related computation, with the allowance for precariousness that has no place here, since this is a rapport and not an occupation indemnity.
The dual role of the occupying bare owner. The ruling rests on a simple idea: whoever occupies a property of which he is bare owner combines the obligations of a tenant towards the usufructuary and those of a bare owner towards the property. There is no joint ownership between him and the usufructuary, and no management account as between co-owners; that is why the brother’s management indemnity is quashed. In an expert report, the flows between usufructuary and bare owner are therefore presented according to the split ownership, articles 605 and 606, not according to the rules of joint ownership.
Forty-four years to reconstruct. An occupation from 1971 to 2015 requires rent references over five decades, or a current rental value taken back in time by rent indices, with a correction for the condition of the property in each period. The report explains the method adopted, gives the annual table and the total, and flags the uncertainty of the oldest periods. The guide on the house occupied by an heir describes those situations and how to approach them before litigation.
What the valuer takes from it
- Free housing granted by the deceased to an heir, with donative intent, is an indirect advantage subject to rapport, measured by the rents that would have been received.
- Only the maintenance repairs borne by the usufructuary are deducted; major repairs stay with the occupying bare owner.
- A loan the deceased would have had to take out for works is not deducted; what matters is that the property was lettable.
- Between usufructuary and bare owner there is no joint ownership: no management indemnity, but the rules of split ownership.
- The report establishes the rental value period by period, in the condition of the property at each date, over the whole duration of the occupation.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Inheritance: house occupied by an heir and the glossary entries valeur locative, usufruit and rapport des donations complement this article. On the same theme: Occupation indemnity: until partition or return of the property and Gift rapport: property given on again is valued at that date. The decision is available on Légifrance.
What next
An heir housed free of charge for years in a property of the deceased, and an advantage to quantify between brothers and sisters?
I establish the rental value of the dwelling period by period, in its condition at the time, and deduct the charges that fell on the deceased, for a rapport the notary or the court can adopt without a new expert report.
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