Advice to avoid the statute of limitations on an occupation indemnity

Published on March 25, 2019

Real estate / construction

In the context of a separation, the occupation indemnity represents the amount of compensation owed to the co-ownership for the occupation of a property. It is due until the day of the partition.

Several limitation periods may apply to occupancy indemnities depending on whether or not they are set in a court decision. The lawyer must therefore determine the applicable period.

It is known that a co-owner (heir or ex-spouse, ex-partner) who initially occupies a property in co-ownership is then liable to the other members of the co-ownership for an occupation indemnity (Article 815-9 of the Civil Code). Most often, the request for payment will be made by the lawyer before the competent President of the High Court so that the due indemnities are not time-barred.

Applicable limitation periods

Since the reform of limitation law, all personal actions are subject to a 5-year limitation period. Thus, at the time of the court claim, it is only possible to request payment for the last 5 years, with earlier periods considered time-barred.

Furthermore, once the amount of the arrears is set by the court decision, the creditor of the compensation can request payment for 10 years, it being specified that the enforcement acts of the decision (seizures, order to pay…) carried out by bailiffs allow, each time, to extend the deadline.

There are therefore two principles:

– before the court claim: the limitation period is 5 years,

– once the court decision is obtained: the limitation period is 10 years.

Prescription of compensation after the judgment

It is common for the judge to set the amount of all or part of the arrears of the occupation indemnity and also set, for the future, or from a given date, the monthly amount that will be due.

The question therefore arose as to whether, for future indemnities, the statute of limitations would be 10 years or 5 years.

In a ruling of December 19, 2018 (No. 17-22.535), the 1st Civil Chamber of the Court of Cassation states that the 5-year limitation period must apply to compensation that has not been the subject of a conviction, and it will therefore be necessary to carry out a new act of interruption of the limitation period for this compensation.