A parent houses one of their children free of charge for years; at the parent’s death, the other heirs ask for that advantage to be brought back into the estate (rapport, the return of lifetime gifts to the estate so that the heirs share equally). In a reported decision of 11 October 2017, the First Civil Chamber of the Cour de cassation (the French supreme court for civil matters) held that a loan for use (prêt à usage, the French gratuitous loan of a thing for use) does not impoverish the lender and is incompatible with the classification of an indirect advantage subject to rapport. For the valuer, the classification adopted by the judge decides whether the rental value of the home enters the partition accounts.
The facts
A man died, leaving as his heirs his wife and their two children, a daughter and a son. The son sued his mother and sister for partition. They asked, in the alternative, for the son to bring back to the estate the indirect advantage he had enjoyed through the free provision of a flat in Paris, from August 2000 to April 2011.
The Paris Court of Appeal, in a judgment of 18 May 2016, rejected that claim. It held that the father’s provision of the flat to his son, since 2000 and without financial consideration, was a loan for use, the commodat of the French Civil Code, and deduced that such a contract is incompatible with the classification of an indirect advantage subject to rapport.
A main appeal was lodged, and the mother and daughter lodged a cross-appeal. They argued that the free enjoyment of a property can be an indirect advantage subject to rapport once both an impoverishment of the giver and an intention to give are established, and that the Court of Appeal had breached articles 843 and 893 of the Civil Code.
The decision
The Cour de cassation dismissed the appeals (Cass. 1re civ., 11 October 2017, appeal no. 16-21.419, reported). It rejected the main appeal as manifestly not such as to lead to cassation, and answered the cross-appeal in two steps.
It first laid down a general rule: “a loan for use is a gratuitous service contract which only confers on its beneficiary a right to use the thing lent but effects no transfer of a patrimonial right in their favour, in particular of ownership of the thing or its fruits and income, so that no impoverishment of the lender results” (translated from the French).
It then applied that rule to the case: the Court of Appeal, having held that the provision of the flat to the son since 2000, “without financial consideration”, was a loan for use, “rightly deduced that such a contract is incompatible with the classification of an indirect advantage subject to rapport”.
The texts at stake are article 843 of the Civil Code, which requires an heir to bring back what they received from the deceased by lifetime gift, directly or indirectly, and article 893, which defines a gift (libéralité). The reasoning turns on impoverishment: the lender keeps ownership of the home and its fruits, nothing leaves the lender’s assets, so there is no gift to bring back. The Court does not rule on the intention to give relied on by the appeal: the absence of impoverishment is enough to rule out the classification.
What this changes for valuation
Classification comes before the figure. Where rapport of a home occupied free of charge is admitted, it is measured by the rents the owner would have received had the home been let. If the judge finds a loan for use, there is nothing to bring back, and the rental value does not enter the partition accounts for that period. Classification is for the judge, not the valuer; the expert report therefore presents the rent calculation as an alternative figure.
A later decision admits rapport in other circumstances. On 2 March 2022, in a reported decision (no. 20-21.641), the First Civil Chamber approved the rapport of the free use of part of a house granted to a son by his usufructuary mother, with an intention to give found by the Court of Appeal, and no proof that the property could not be let; the rapport indemnity equalled the rents that should have been paid, less only the repairs and maintenance costs borne by the usufructuary (Housed free by the usufructuary: an advantage to bring back). The two decisions fit together: the 2022 decision, the later one, shows that free enjoyment of a home is not, as a matter of principle, outside rapport. Where the trial judges find a loan for use, the 2017 decision rules out rapport; where they find an intention to give concerning a lettable property, the 2022 decision admits it and sets its measure.
The facts the expert report documents. The valuer does not classify the contract, but gathers the material facts the judge needs: the extent of the premises occupied, their condition at the start of the occupation and in each period, whether or not they could be let, the exact length of the occupation, and what the occupant paid, service charges, taxes or works. The impoverishment test applies to every gift: a decision of 10 June 2026 recalls that a gift requires an impoverishment of the giver with an intention to benefit the recipient, and that the burden of proving the gift lies on whoever relies on it (Disguised gift through a share sale: proving the impoverishment).
The alternative calculation. For an occupation from August 2000 to April 2011, more than ten years, the valuer establishes the market rental value period by period, with rent references from each period, adjusted for the condition of the home at each date. The expert report gives the table by period and the total.
After the death, another rule. Rapport covers only gifts made by the deceased during their lifetime. Where an heir alone occupies, after the death, a property that has become jointly owned (indivision), the question is no longer rapport but the occupation indemnity (indemnité d’occupation) owed to the joint owners (article 815-9 of the Civil Code), which follows its own rules (Occupation indemnity: until partition or return of the property). The expert report separates the two periods.
What the valuer takes from it
- A home lent free of charge to an heir under a loan for use does not impoverish the lender; it is not an indirect advantage subject to rapport.
- The decisive test is the absence of impoverishment: the lender keeps ownership of the home and its fruits, and the Court does not rule on the intention to give.
- Classification is for the judge: the valuer documents the condition of the home and the occupation, and presents the rental value as an alternative calculation.
- Other situations follow other rules: the decision of 2 March 2022 admits rapport of free enjoyment granted with an intention to give on a lettable property, and sole occupation of a jointly owned property after the death falls under the occupation indemnity.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Inheritance: the house occupied by an heir and the glossary entries rapport des donations, valeur locative and indemnité d’occupation complement this article. Another reported decision of 2017, on a claim between spouses, has its own article: Claim between spouses: only the creditor spouse’s funds count. On the same theme: Housed free by the usufructuary: an advantage to bring back and Disguised gift through a share sale: proving the impoverishment. The decision is available on Légifrance.
What next
An heir housed free of charge by the deceased, and co-heirs asking for that advantage to be brought back into the estate?
I establish the rental value of the home period by period, in its condition at the time, and describe the terms of the occupation. The expert report gives the notary or the court a reasoned figure, to be used if the judge finds an advantage subject to rapport.
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).
