Furnished rental: Do you know the dismemberment?

Free tribune

The dismemberment of a furnished rental property has the double advantage of not calling into question the depreciation mechanism of which the usufructructures can continue to benefit, and not to trigger the taxation of the capital gain when giving bare ownership, explains Baptiste Bochart, lawyer at JD2M.

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The dismemberment of ownership designates a situation in which the full ownership of real estate is separated between several people. If this situation is frequent within the framework of a succession, it is also possible to proceed during his lifetime, in order to prepare the transmission of his real estate assets, even if the property concerned is the subject of a furnished rental activity.

What does it mean to dismember real estate?

In principle, the owner of a property holds what is called full property, itself made up of the three components that are the Usus (the right to use good), the fructus (the right to perceive the fruits), and the abuse (the right to dispose of the property). But nothing prevents him from splitting this full property, between two or more people, who then become either usufructuary or bare owners of the property.

What will be the rights of each in the event of the dismemberment of real estate?

The usufructuary (s) will then hold the usufruct which, as its name suggests, brings together the usus and the fructus. In real estate matters, this means, for example, that it is the usufructit trees who will be able to decide to rent the property, and will receive the rents. On the side of the bare owners (s), they will hold the abuse. They will then have the possibility of selling their property rights, but will not be able to sell the enjoyment of the property, since it belongs to usufructurate. If receiving bare ownership can, at first glance, seem not very interesting, it is important to keep in mind that it is the bare owner of the property which ultimately recovers the usufruct, and therefore full ownership, whether at the expiration of a agreed period or, more commonly, on the death of the usufructuary. However, this operation can be very effective in preparing, and optimizing, the transmission of real estate subject to a furnished rental activity.

What are the advantages of furnished rental dismemberment?

In the vast majority of cases, the owner (s) of the property keep usufruct, in order to continue to exploit the furnished rental activity, and to perceive the rents, and donate bare ownership to their assigns, often their children. This donation of bare ownership then makes it possible to limit the registration rights, since the value of the bare ownership, calculated according to the age of the usufructuary, is the subject of a reduction of € 100,000 per child and per parent every 15 years.

In the same way, the dismemberment makes it possible to reduce the rights of donation since the latter are then, at the time of the dismemberment, only calculated on the value of the bare ownership, and may even be acquitted by the donors, without the sums mobilized for this purpose being themselves considered as donations. Finally, the dismemberment of a furnished rental property presents the double advantage of not calling into question the depreciation mechanism which the usufructuaries can continue to benefit, and this since a decision of the Council of State rendered in 2019, and not to trigger the taxation of the capital gain when giving bare ownership, or at the time when the naked owner becomes full owner, by the death of the usufructuary dismemberment.

How to manage a furnished property that has been the subject of a dismemberment?

If the dismemberment facilitates the transmission of real estate, the fact remains that it also has consequences on the use of this same property during the period of dismemberment. Thus, throughout the duration of the dismemberment, it is the usufructuary which may proceed to the rental of the property and to perceive its rents, without having to consult the bare owner. In return, it is the usufructuary who assumes the homework of a classic owner-player, we then speak of usufructuary-lessor, receives the rents, and pays taxes which result from his activity. He also has the responsibility of the current maintenance of the property, according to the rules fixed in article 605 of the Civil Code, unless, within the framework of a conventional, usufructuary and bare owners have chosen a distribution of the tasks and obligations different from that provided for by the Civil Code. For its part, and although it has the property right of the property, the bare owner will not be able to sell the property that by having, beforehand, collected the agreement of all the bare owners and the usufructurate.