In 1976 parents give three plots of land to two of their seven children, outside the inheritance share. On their death in 1986, the other heirs claim reduction: the donees keep the land up to the disposable portion, and must return the fruits of the excess since the death. But which fruits? The two brothers farm the land themselves, and the net income of the farm equals, for each, the minimum wage. The Aix-en-Provence court of appeal holds that nothing is to be returned. The Cour de cassation (the French supreme court for civil matters), on 30 September 2020, in a reported decision, approved: the obligation to return the fruits “presupposes that the gifted property was, at the date of the gift, in a condition allowing it to produce income”, and “the value of the work carried out by the donee, which made their production possible, must be deducted from the fruits to be returned”. For the valuer, this is an income valuation assignment: what the land could produce on its own, and what comes from the farmer’s work.
The facts
By deed of 27 October 1976, two spouses make a gift outside the inheritance share of three plots of land to two of their children. They die in 1986, leaving seven children. The co-heirs sue the two donees for partition and reduction; a ruling of 1994 allows them to keep the property up to the disposable portion. What remains is the return of the fruits of what exceeds that portion, from the death.
On remittal after a first quashing in 2006, the Aix-en-Provence court of appeal, on 5 December 2018, holds that there is nothing to return: the net income drawn from the farming of the property equals the minimum wage for each of the two farming donees, and “the farmer’s income” and the management tasks must be taken into account. The co-heirs appeal: fruits are returned as a matter of principle, and the donee cannot claim a management fee, the property not being jointly owned.
The decision
The first civil chamber dismissed the appeal (Cass. 1re civ., 30 September 2020, no. 19-12.296, reported). “The obligation imposed on the donee by article 928 of the Civil Code, in its wording prior to that of the Act of 23 June 2006, to return the fruits of what exceeds the disposable portion, from the day of the donor’s death, presupposes that the gifted property was, at the date of the gift, in a condition allowing it to produce income. It follows that the value of the work carried out by the donee, which made their production possible, must be deducted from the fruits to be returned under that provision.”
“Having noted that the net income drawn from farming the property subject to the reduction claim corresponded to the equivalent of the minimum wage for each of the two farming donees, the court of appeal rightly deduced that there was no reason to return fruits.”
What this changes for valuation
The fruits owed are those the property produced by itself. The donee who must give back the excess of the gift also owes its fruits from the death; today’s article 928 of the Civil Code still says so. But the Court makes it conditional: the property had to be, at the date of the gift, “in a condition allowing it to produce income”. Fallow land, an unusable building, a business without customers produce nothing on their own; what comes out of them later comes from the work of whoever developed them. The valuer therefore first establishes the condition of the property at the gift, from the deed, the agricultural returns or the leases of the time, and the income it could then yield, for instance the farm rent a tenant would have paid.
The donee’s work is deducted. When the donee farms the land personally, the net farming income mixes the return on the land and the remuneration of labour. Only the first is a fruit of the property. The court of appeal found that the net income equalled one minimum wage per farmer, so nothing beyond the remuneration of labour: no fruits to return. The report separates the two, by comparing the net income with a normal remuneration for the work supplied, or, more simply, by measuring the fruit of the property through the market rent or farm rent the property would have yielded had it been let. The glossary describes the valeur locative, which is that measure.
A method close to the occupation indemnity, with one difference. For jointly owned property occupied by an heir, the indemnity is computed on rental value, as shown in the article on the occupation indemnity between co-owners. Here the property is not jointly owned, and what is owed is not an indemnity but the fruits themselves; the Court denies the donee a management fee such as that of article 815-12, but grants the deduction of their work, which comes to the same in figures. The report explains that distinction, so that the reasoning matches the legal basis.
On the excess only, and from the death. The fruits are owed only on the portion of the property exceeding the disposable portion, and from the donor’s death. The report therefore applies the reducible proportion, fixed by the 1994 ruling in this case, to the annual income of the property, year by year since the death, with the farm rents or rents of each period. The article on the reduction indemnity at the date of partition deals with the capital, this one with the income; both belong in the same report.
A thirty-year file, evidence of the time. Between 1976 and the partition, the farm rents and yields of each period must be found: prefectoral orders on farm rents, farm accounts, returns to the agricultural social fund. The report says what it found and what it reconstructed, and presents the calculation year by year. The guide on the standard court mission for a partition describes these assignments.
What the valuer takes from it
- The donee subject to reduction returns the fruits of the excess only if the gifted property was, at the gift, in a condition to produce income.
- The value of the donee’s work that made the production of the fruits possible is deducted from what they return.
- Net farming income that does not exceed the remuneration of the farmer’s work leaves no fruits to return.
- The fruit of the property is measured by the income it would have yielded without the donee’s work, such as the market farm rent or rent.
- The fruits bear only on the reducible portion, from the death, year by year.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Standard court mission: market value for a partition and the glossary entries réduction des libéralités, quotité disponible and valeur locative complement this article. On the same theme: Reduction indemnity: value at partition, not at the opening of the estate and Inheritance in France: gifted land is valued as bare land. The decision is available on Légifrance.
What next
Gifted farmland worked by the donee, and fruits to return since the death?
I establish the income the property could yield at the date of the gift, the net income actually drawn from the farm and the share attributable to the farmer's work, for the notary handling the estate or the court.
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