Article 924-4 of the civil code constitutes the operational extension of the action for reduction when a gifted asset has been alienated by the donee. Its mechanism opens a claim for recovery for the reserved heirs against the third-party acquirer, creating a direct risk to the security of real estate transactions involving assets of liberal origin.
Action for recovery under Article 924-4: conditions for invoking against the third-party acquirer
The action for recovery is not automatic. It first requires that the gift be reducible due to infringement of the hereditary reserve. As long as the available quota is not exceeded, the text remains ineffective.
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The mechanism is triggered in two stages. The reserved heir must first request the donee to pay the reduction indemnity. Only in the event of the donee’s insolvency can the action be directed against the third-party holder of the asset.
This subsidiary nature is often misunderstood. The heir does not freely choose their target. They must establish that the donee is unable to pay the indemnity. In practice, this involves proving a patrimonial insufficiency, which can extend the litigation by several months.
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For an explanation of Article 924-4 of the civil code applied to different family configurations, the distinction between simple donation and donation-sharing plays a crucial role in calculating the reduction mass.
Consent to alienation: the notarial clause that neutralizes the risk
Paragraph 2 of Article 924-4 provides for a purging mechanism. The consent of all presumptive reserved heirs to the alienation of the asset prevents any subsequent action for recovery against the acquirer.
We observe that the drafting of this clause in the notarial deed has evolved in recent years. The drafting guides for deeds distributed to notaries now include a standard clause. This clause expressly states that the parties have been informed of the provisions of Article 924-4 and that the reserved heirs consent to the proposed alienation.
The ruling of the Aix-en-Provence Court of Appeal (RG No. 20/04105) illustrates the practical stakes of this mention. The judge relied on the express presence in the notarial deed of the information provided to the donee regarding the action for reduction to arbitrate the conflict between heirs and acquirer.
Identification of presumptive reserved heirs
The technical difficulty lies in the exhaustive identification of reserved heirs on the day of alienation, and not on the day of death. A child born after the sale but before the donor’s death will not have consented. This temporal gap weakens the purge.
- The donor’s already born children must all participate in the deed, including those from different unions.
- A conceived but not yet born child on the day of the sale raises the question of representation by the surviving parent.
- Fully adopted children have the status of reserved heirs and must consent on the same basis as biological children.
The drafting notary bears a heavy responsibility here. The omission of a reserved heir renders the purge unenforceable against them.
Prescription of the action for reduction and thirty-year origin of property
The action for reduction is subject to a five-year limitation from the opening of the succession, or two years from the day the heirs became aware of the infringement on their reserve, without exceeding ten years after the death. This time limit also applies to the action for recovery under Article 924-4, as it is an accessory to it.
In real estate sales, the notary must report a thirty-year origin of property. This obligation specifically aims to verify whether the asset comes from a gift that may be subject to reduction. If the donation dates back less than thirty years and the donor is still alive, the risk of eviction by the reserved heirs exists as long as the succession is not opened and prescribed.
Connection with the seller’s eviction guarantee
The seller owes their acquirer the eviction guarantee provided for in Articles 1626 and following of the civil code. The action for recovery under Article 924-4 constitutes a typical case of eviction that the notary must anticipate when drafting the deed.
We recommend not to settle for a simple informative mention in the deed. The consent clause should be drafted independently, with the nominative identification of each reserved heir, and distinct signatures from each.
Blocking sales in tense areas: a problem identified by the legislator
Written question No. 8707 submitted by Deputy Olivier Falorni highlights a concrete perverse effect. When a reserved heir refuses to consent to the alienation, the sale becomes risky for the acquirer who may legitimately withdraw. The seller-donee then finds themselves unable to transfer their asset.
This blockage particularly affects areas where the rehabilitation of properties unfit for habitation is a public policy priority. A gifted asset, for which a co-heir refuses consent to the sale, remains frozen in the donor’s estate with no possibility of renovation by a third-party acquirer.
- The refusal of a single reserved heir is enough to compromise the transaction.
- No judicial mechanism currently exists to compel an heir to give their consent.
- The ministerial response mentioned reflections carried out within the Ministry of Justice, without any concrete reform to date.
The current drafting of Article 924-4 thus places the notary in a delicate arbitration position between the protection of the hereditary reserve and the fluidity of the real estate market. Until a legislative evolution occurs, the only workaround remains to obtain unanimous consent in advance or to ensure that the donor’s estate covers the potential reduction indemnity.