In some cases, your freedom to sell a property may be subject to the agreement of the children of the person who made the gift to you. In most cases, these will be your brothers and sisters. This need for agreement is a formality that is often overlooked and can cause major problems in the event of family disagreements.
Why do I need my brothers' and sisters' agreement to sell?
This requirement is directly linked to the existence of a succession reserve stipulated by French law. Parents are prohibited from disinheriting one or more of their children. The latter are entitled, whatever happens, to a share (the amount of which varies according to the number and status of the heirs) of their ascendant's estate.
This reserve is calculated on the basis of the assets left by the deceased on his death and those disposed of during his lifetime.
Consequently, if your brothers and sisters do not receive their reserved share of the estate, the question of the reduction of the gift you received arises.
Therefore, when selling a property received by gift, it will be necessary to obtain the agreement of the reserved heirs (the heirs entitled to a reserve) for the sale of the property.
Article 924-4 of the Civil Code gives the donor's reserved heirs a right of revendication in the event that they do not receive their reserved share. In practical terms, if the donee is unable to make up the shortfall in cash, the heirs have the right to recover the property in kind. This right to recover the property is exercised against the donee if he or she is still in possession of it. If the property has been sold by the donee, the heirs may recover it from the purchaser.
In such cases, the notary will ensure that the donor's reserved heirs agree to the sale, so that they consent to the sale and waive their right to recover the property from the purchaser. If the reserved heirs do not receive the full amount of their reserved portion, they can simply claim the cash value from the donee. The action protects them on condition that the donee is solvent, which sometimes leads to reluctance on the part of the reserved heirs to give their agreement.
In short, the agreement of the brothers and sisters is therefore necessary to secure the sale and protect the purchaser against an action for reduction.
Action for reduction
An action for reduction must be brought within 5 years of the opening of the estate or within 2 years of the day on which the heirs become aware of the infringement of their reserved portion, although the latter period may not exceed 10 years after the death of the donor.
In the vast majority of shared gifts, the notary will have taken care to provide for the waiver of this claim. In this case, the agreement of the joint heirs will not be required if the donated property is sold.
However, this waiver is not systematic in the case of a shared gift and is not generally provided for in the case of simple gifts.
In conclusion, it is advisable to carry out a precise analysis of the title to the property and even of the deeds of the donor's estate in order to determine whether or not the sale is subject to the agreement of the heirs with right to the property.
