Buying property as joint owners ‘en indivision’
One of the ways a couple can hold jointly a property in France is 'en indivision'. When purchasing this way, the property is shared between the purchasers according to their financial contribution. It is similar in some extent to a tenancy in common in English law. Each of the purchasers owns a share of the house and the surviving co-owner will not automatically inherit the deceased co-owner’s share.
The French rules of international private law as in the UK provide that the succession of land and property is currently governed by the law of the country where it is situated unless held in the name of a Company subject to conditions.
Take as an example a married English couple with two children buying a second home in both their names in France. On the first death, the surviving spouse will remain the owner of his/her half share whereas the deceased’s half share will be divided between the two children and the surviving spouse who will be entitled to either one quarter absolutely or a French life interest (usufruit) in the deceased person’s stake. French law has a concept of forced heirship which means that, as a matter of public policy, children have a statutory right to inherit part of their parents estate and cannot be disinherited (through a Will the spouse can only increase the surviving spouse’s portion.)
A Will cannot currently override the childrens' rights. The rules are due to change in 2015, but until then …
It is worth mentioning that there might be other means to circumvent these rights subject to their circumstances rather than a Will.
In this example, each spouse cannot provide for the surviving spouse to inherit the whole estate but with a Will can either leave:
- one third in absolute property of the deceased’s estate. or,
- one quarter in absolute property and three quarters in life interest (usufruit) of the deceased’s estate or,
- A life interest (usufruit) in the whole of the estate.
When the surviving spouse is in co-ownership with the children then in the event of a disagreement over the sale of the property the party wishing to sell can compel the other party to sell his/her share without further condition.
Consequently during the lifetime of the co-owners ‘en indivision’ one party can claim and force a sale of the property without the consent of the other whereas it is not possible with a clause tontine.
If one of the co-owners (indivisaires) wants to sell his share, the other co-owners have a right of pre-emption. In other words, if one finds a buyer for his share the other co-owners can nevertheless purchase his share in lieu under the same conditions. They will use their statutory first option to buy.
The statutory legal rights do not operate on the death of a co-owner but the title deed can provide when amended.
There can be an agreement between the tenants in common (or ‘indivisaires)’ called ‘convention d’indivision’. This agreement must be in writing and will last for a period of time and it is renewable.
This convention will be set out in a deed and will govern matters such as rights of first refusal; the proportion of contribution to the purchase monies; the rights of the manager responsible for representing all the co-owners; creditors’ rights; management and votes; possession of the property; bank accounts, etc.
We believe that the ‘convention d’indivision’ should be supplemented by house rules providing for the day-today running of the property, period of occupancy etc.
Will - The French inheritance rules of intestacy will apply on death.
It is important to establish as soon as possible your inheritance position under French law. For estate planning don’t forget to understand and have your inheritance tax and rules explained by the Notaire before signing the final deed. You will also assess whether you need a separate French Will.
This article is not a substitute for detailed advice on specific transactions and problems and should not be taken as providing legal advice on any of the topics discussed.