Article 924-4 of the Civil Code protects reserved heirs by allowing them to take action against a third-party purchaser of a property resulting from a reducible gift. This mechanism, designed to guarantee the hereditary reserve, can block the resale of real estate for decades, as long as the donor’s estate is not settled.
Since the 2006 reform, the reduction of gifts is generally carried out in value. However, the action against the third-party holder remains a feared lever for purchasers, notaries, and banks.
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Clause 924-4 in donation deeds: what notaries have changed since 2022
Notarial practice has significantly evolved in recent years. Until recently, the issue of Article 924-4 only arose at the time of the sale of the gifted property, when the drafting notary sought the consent of all reserved heirs. The problem then arose urgently, sometimes with a compromise already signed.
Since 2022, the notarial chambers of Paris and Lyon have recommended anticipating this risk as early as the drafting of the donation deed. The method involves inserting a specific clause maintaining the obligation of reporting and applying Article 924-4, accompanied by a mechanism for waiving the real guarantee in favor of a quantifiable reduction indemnity. Reserved co-heirs sign at the time of the donation, not at the time of the sale.
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This preventive approach modifies the timeline of consent. Instead of seeking the agreement of each reserved heir years after the donation (with all the family uncertainties that entails), the notarial office freezes the legal situation upstream. The jurisprudence of Article 924-4 of the Civil Code has made this precaution almost indispensable for any real estate donation between parents and children.
Action for reduction against the third-party purchaser: the mechanism that worries buyers
The text of Article 924-4 provides that when a gifted property is alienated by the donee, reserved heirs can, if the donation exceeds the disposable portion, exercise a claim against the third-party holder. In practical terms, a good faith purchaser may lose the property they bought if the gift from which it originates turns out to be reducible after the donor’s death.
This risk is not theoretical. Written question No. 8707 to the National Assembly (16th legislature) highlighted cases where real estate sales were rendered impossible due to the lack of unanimous consent from reserved heirs. Deputy Olivier Falorni pointed out that this situation could prevent the rehabilitation of properties unsuitable for habitation in tight areas, going against public housing access policies.
Unanimous consent of reserved heirs: a paralyzing condition
The main difficulty lies in the requirement for unanimity. All reserved heirs must consent to the alienation for the purchaser to be protected. If one of them refuses, even without an apparent legitimate reason, the sale becomes risky. Just one reserved heir is enough to block the transaction.
In complex family configurations (blended families, large siblings, heirs abroad), obtaining this consent can sometimes be impossible. Since the donor’s estate has not yet opened, reserved heirs have no legal obligation to facilitate the sale.
Increased banking requirements since 2023 for properties resulting from donations
Banking institutions have tightened their financing conditions for the acquisition of properties from potentially reducible donations. Since 2023, several banks require one of the following elements before granting a loan:
- Proof of an early waiver of the action for reduction (RAAR) signed by the other reserved heirs before two notaries
- A notarized deed confirming the absence of significant risk of implementing Article 924-4
- The express consent of all reserved heirs to the proposed sale
This tightening reflects an awareness of the risk of eviction. For a bank, financing the purchase of a property that the purchaser could be forced to return represents a risk of loss of the mortgage guarantee.
Early waiver of the action for reduction: a still underused tool
The RAAR, introduced by the law of June 23, 2006, allows a reserved heir to waive their right to exercise the action for reduction on a specific gift during their lifetime. This waiver must be received by two notaries, one of whom is designated by the president of the notarial chamber.
This tool constitutes the most direct response to the problem posed by Article 924-4. If all reserved heirs have signed a RAAR concerning the gift in question, the property can be resold without the risk of a claim against the future purchaser.
Why the RAAR remains little used in practice
Waiving the action for reduction means accepting, even before the opening of the estate, a potential infringement on one’s hereditary reserve. Reserved heirs hesitate to sign a deed whose patrimonial consequences will only be known upon the donor’s death. The composition of the estate can change significantly between the date of the donation and that of death.
Moreover, the RAAR assumes a calm family context. In conflictual situations, asking a co-heir to waive their future rights faces predictable resistance.
Judicial liquidation of the donee and forced sale: a limit case
The issue becomes more complicated when the donee is subject to collective proceedings. The amicable sale of a property received by donation, ordered in the context of a judicial liquidation, is still subject to Article 924-4. Reserved heirs retain their right to act against the third-party purchaser, even if the sale has been authorized by the judge-commissioner.
This point creates a legal insecurity for purchasers during judicial sales. The liquidator cannot guarantee that the action for reduction will not be exercised later. Field reports vary on how commercial courts take this risk into account in their orders authorizing the sale.
The ministerial response to written question No. 8707 mentioned the existence of a multidisciplinary working group within the Ministry of Justice, tasked with considering an evolution of the system. To date, no legislative reform has been achieved. Article 924-4 remains a text whose practical application poses difficulties that neither jurisprudence nor notarial practice have fully resolved.