An heir with reserved rights discovers, upon the death of their father, that a property given to a brother was sold to a third party a few years earlier. The reserved inheritance is diminished, the donee is insolvent, and the question arises: can one take action against the buyer of the property? This is precisely the domain of article 924-4 of the Civil Code, a mechanism that allows heirs with reserved rights to take action for restitution against the third-party holder when the reduction indemnity remains unpaid.
Notary’s Liability and Lack of Information on the Risk of Eviction
We start with the point that has generated the most litigation in recent years: the questioning of the notary who drafted the deed. Several recent decisions, particularly before the Court of Appeal of Aix-en-Provence, have sanctioned notaries for failing to alert the buyer about the risks related to article 924-4. The judges’ reasoning is straightforward: the notary must provide accurate information about the succession consequences of the act, including the possibility of a restitution action against the third-party buyer.
Related reading : Everything You Need to Know Before Buying on Modz: Reliability and Customer Reviews
In practical terms, when purchasing a property resulting from a gift or a gift-sharing, the notary drafting the sales deed is obligated to verify the origin of ownership. If the property was given, they must inform the buyer that a reduction action could, in the long run, challenge their title to ownership. The absence of this information engages their professional liability.
To fully understand the application of article 924-4 of the Civil Code, it is essential to keep in mind that this text creates a right of follow-up in favor of heirs with reserved rights. This right follows the property, even in the hands of a good-faith purchaser.
Read also : Everything You Need to Know About the ABA Method: Principles, Benefits, and Tips for Parents
Reduction Action Against the Third-Party Holder: Conditions and Concrete Mechanism
Article 924-4 does not apply automatically. It intervenes in a specific sequence that can be summarized as follows:
- A donor transfers a property (often real estate) to a donee, through a simple gift or gift-sharing.
- Upon the donor’s death, one or more heirs with reserved rights notice that the gift exceeds the available quota and exercise a reduction action.
- The donee must then pay a reduction indemnity in value to the aggrieved heirs. If they cannot pay (insolvency, judicial liquidation), the heirs with reserved rights can act directly against the third party holding the property.
The third-party buyer thus finds themselves exposed to a restitution of the property, even though they have paid the price and signed a properly executed notarial deed. This is a situation that most buyers are completely unaware of at the time of sale.
Reduction in Value or Restitution in Kind
Since the reform of 2006 (law of June 23, 2006), the reduction of gifts is generally carried out in value, meaning through the payment of an indemnity. Restitution in kind of the property only occurs as a last resort, when the debtor of the indemnity does not pay.
This subsidiary nature makes article 924-4 formidable. The third-party holder is not the primary target, but they become the target when all other avenues are exhausted. In practice, this situation is observed mainly in two cases: the insolvency of the donee or their judicial liquidation.
Judicial Liquidation of the Donee and Article 924-4 of the Civil Code
Case law has clarified the relationship between article 924-4 and collective proceedings. When a donee in judicial liquidation sells a property amicably, the sale price is distributed among creditors according to the legal order. Heirs with reserved rights, who hold a claim for reduction indemnity, find themselves in competition with other creditors.
If the sale price is insufficient to cover the reduction indemnity, the heirs retain the possibility of exercising their right of follow-up against the new buyer. Judicial liquidation does not neutralize the right of follow-up of the reserved heirs. This point remains a source of litigation, as judicial representatives and buyers of properties sold in liquidation do not always grasp this risk.
Consent of Co-heirs to the Sale
To secure a sale involving property from a gift, notarial practice recommends obtaining the consent of all presumptive heirs with reserved rights. This consent, given in the sales deed, constitutes an anticipatory waiver of the restitution action against the buyer.
As highlighted in the written question addressed to the Keeper of the Seals in 2019, this process faces concrete obstacles:
- The selling donee sometimes refuses to consult their co-heirs, due to family conflict or negligence.
- Some presumptive heirs attempt to monetize their consent, which blocks the sale.
- Heirs may be untraceable, incapacitated, or simply unidentified at the time of the transaction.
The notary then finds themselves in a delicate position: they cannot compel co-heirs to intervene, but they must inform the buyer of the residual risk. A deed signed without the consent of co-heirs remains valid, but the buyer bears the risk of a future action.
Precautions Before Buying Property from a Gift
On the ground, the best protection for a buyer remains vigilance at the stage of the preliminary contract. The origin of ownership mentioned in the sales agreement must be read carefully. If the property comes from a gift or gift-sharing, several verifications are necessary.
First, inquire whether the donor is still alive. As long as the donor is not deceased, no reduction action can be exercised, since the succession is not open. Next, check whether the presumptive heirs with reserved rights agree to intervene in the deed. Their signature in the sales deed constitutes the best guarantee against a future restitution action.
Finally, require the drafting notary to include a clear clause in the deed, mentioning the existence of the risk and the steps taken to mitigate it. This transparency protects both the buyer and the notary themselves against a subsequent questioning of their liability.
Article 924-4 of the Civil Code remains a little-known text to the general public, but its practical effects can disrupt a real estate acquisition. Vigilance regarding the origin of ownership and dialogue with the notary constitute the two concrete levers to avoid an unpleasant succession surprise.