In an inheritance, two co-owners keep the keys to a jointly owned building and refuse to hand one to the third in person. Is keeping the keys enough to have sole enjoyment of the property (jouissance privative) and to owe an occupation indemnity (indemnité d’occupation) to the joint ownership (indivision)? In a reported decision of 31 March 2016, the First Civil Chamber of the Cour de cassation (the French supreme court for civil matters) answers that sole enjoyment results from the impossibility, for the other co-owners, of using the property, and that holding the keys to the only entrance door characterises it. For the valuer, it is that impossibility, dated and documented, that opens the period over which the indemnity is computed.
The facts
A man died on 21 January 1990, leaving as heirs his wife, married under community of property, a son and a daughter. In 2004 the widow, assisted by her curator (curatrice), sued the son for partition of the estate, together with the widower and the son of the daughter, who had died in the meantime. The widow died during the proceedings.
The son asked for an indemnity to be charged to his brother-in-law and his nephew for the sole occupation of a building belonging to the estate, at Gerbévillers. The Metz Court of Appeal ruled on 4 November 2014, on remittal after a first decision of the Cour de cassation of 21 November 2012 (no. 11-20.365). It found that the brother-in-law and the nephew had refused to hand the son in person a key to the only entrance door giving access to the building, but held that exclusive occupation could not be inferred from this: it declared the claim for an occupation indemnity admissible but unfounded. The son appealed.
The decision
The Cour de cassation partly quashed the ruling (Cass. 1re civ., 31 March 2016, appeal no. 15-10.748, reported), under article 815-9 of the French Civil Code. That provision allows each co-owner to use jointly owned property in accordance with its intended use, to the extent compatible with the rights of the other co-owners, and makes whoever uses or enjoys it alone liable for an indemnity, unless otherwise agreed.
The Court first sets the test: “the sole enjoyment of a jointly owned building results from the impossibility in law or in fact for the co-owners to use the property” (translated from the French). It then applies it to the facts found by the lower courts, referring to the brother-in-law and the nephew as the Y… parties: “holding the keys to the entrance door of the building, in that it allowed the Y… parties alone to have free disposal of the jointly owned property, constituted sole and exclusive enjoyment”. By refusing to infer exclusive occupation from it, the Court of Appeal breached article 815-9.
The case was remitted to the Colmar Court of Appeal, which will rule again on the indemnity, whose amount and period the Cour de cassation did not set. The quashing also covers a head concerning the widow’s non-material loss, unrelated to the valuation of the property.
What this changes for valuation
An impossibility of use, not mere presence. The test turns on what the other co-owners can no longer do with the property, not on the use the occupant makes of it. The Court does not base its solution on the key holders living in the building, which its decision does not describe, but on control of the only access, which left them alone with free disposal of the building. A refused key is an impossibility in fact.
How it fits with the 2018 decision. In a reported decision of 3 October 2018 (no. 17-26.020), concerning a house bought with a survivorship clause (tontine) and discussed in the article on the occupation indemnity owed until partition or return of the property, the First Civil Chamber held that occupying the building alone is not, in itself, sole occupation if it is not shown that the occupant, by their act, prevents another holder from exercising their concurrent right. The two decisions do not contradict each other: the more recent one looks at it from the occupant’s side. The indemnity arises from the impossibility, in law or in fact, for the other co-owners to use the property; a refused key is clear evidence of it.
What the report establishes before quantifying. Characterising sole enjoyment is for the judge. The report gives the judge the dated facts behind it: the number of accesses to the property, who holds the keys, requests for a key and the answers received, letters, any report by a commissaire de justice (court bailiff), a change of lock. Where the documents leave doubt about the starting point, the valuer presents the computation for each possible date, and the judge decides which is proven.
The measure: the rental value of each period. The decision says nothing of the amount, which is for the court on remittal. In practice, the indemnity is computed from the market rental value (valeur locative) of the property, less an allowance for the precariousness of the occupation, commonly set between 10 and 20 per cent. The decision of 1 October 2025, discussed in the article on the home valued as close as possible to partition, requires regard to the rental value throughout the sole enjoyment: the valuer sets it period by period. The period ends at partition or at the actual return of the property to the joint ownership, of which the dated return of the keys is one means of proof. Finally, under article 815-10 of the Civil Code, no claim relating to fruits and income is admissible more than five years after they were or could have been received: the period quantified is checked against the claims made.
Not to be confused with neighbouring questions. A co-owner who occupies under a lease, even a verbal one, granted by the deceased owes no occupation indemnity, as the article on the co-owner as tenant under a verbal lease explains. Two other reported decisions of 2016, discussed separately, settle different points: the property tax on occupied joint property remains borne by the joint ownership until partition, despite the sole occupation, and, after a divorce, the indemnity owed by the spouse who had free use of the home runs only from the date the divorce becomes final (force de chose jugée).
What the valuer takes from it
- Sole enjoyment of jointly owned property results from the impossibility, in law or in fact, for the co-owners to use it; exclusive holding of the keys to the only access characterises it.
- Occupying alone is not enough in itself (decision of 3 October 2018): the indemnity requires that the other co-owners be prevented, in law or in fact, from using the property; a refused key proves it.
- The report describes the accesses, the keys, the requests and the refusals, with their dates, before any computation; the legal characterisation remains for the judge.
- The indemnity is computed on the market rental value of each period, with an allowance for precariousness, from the start of sole enjoyment until partition or the actual return of the property, which the dated return of the keys can prove.
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 indemnité d’occupation, indivision and valeur locative complement this article. The two other 2016 decisions are discussed in Property tax on occupied joint property: borne by all co-owners and Occupation indemnity after divorce: runs from appeal withdrawal. On the same theme: Occupation indemnity: until partition or return of the property and Co-owner as tenant: a low rent is not an occupation indemnity. The decision is available on Légifrance.
What next
A co-owner alone keeps the keys to the property, and an occupation indemnity needs quantifying?
I establish the rental value of the property period by period and the allowance specific to the occupation indemnity, over the whole period of sole enjoyment, for the notaire, the lawyer or the court.
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