What Is Indivision in French Law?

Indivision arises when several persons hold identical, concurrent rights over the same property — typically ownership, bare ownership (nue-propriété), or usufruct — each for an undivided share that is not physically separated. Unlike co-ownership in a copropriété building, where each co-owner holds a distinct lot, indivision gives each co-owner rights over the entire property simultaneously.

Indivision can arise in two ways. Most commonly it is involuntary: the death of a property owner creates indivision between the heirs automatically, without any formality. The dissolution of a matrimonial community also creates indivision between the former spouses pending partition. Less commonly, indivision is voluntary: two or more persons deliberately acquire a property together as undivided co-owners rather than through a company structure.

The practical consequences for commercial lease transactions are far-reaching. An inherited commercial building, a family property brought into commercial use after the owner's death, or jointly purchased investment premises can all find themselves in indivision — a state that makes granting a commercial lease significantly more complex than where a single owner or company holds the title.

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Key Point: No Legal Personality

An indivision has no legal personality of its own. A French commercial lease signed "on behalf of the indivision" — rather than by all the co-owners personally or by a properly mandated representative — is null and void by absolute nullity (Cass. 3e civ. 16-3-2017 n° 16-13.063). The indivision is not a party that can contract; only the individual co-owners are. This is a trap that catches practitioners unfamiliar with French law.

The Unanimity Rule: Why Every Co-Owner's Consent Is Required

Granting a French commercial lease over property held in indivision requires the unanimous consent of all co-owners. This rule derives from Article 815-3 of the Civil Code, which reserves the unanimity requirement for all acts that do not fall within the "normal exploitation" (exploitation normale) of the jointly owned assets. Granting a commercial lease — and renewing one — is not an act of normal exploitation: it is a disposal act that potentially commits the property for nine years or more. Courts have consistently held that it requires unanimity (Cass. 3e civ. 3-3-2009 n° 08-11.278).

The same rule applies to refusing renewal: a decision not to renew a commercial lease, or to serve a congé with refusal of renewal, also requires the agreement of all co-owners (Cass. 3e civ. 18-4-1985). This is significant in practice: even a co-owner who does not own a controlling share can block both the grant and the refusal of renewal of a commercial lease over jointly owned property.

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The Single Heir Veto

This is the central practical problem of indivision and commercial leases. An estate holding a commercial property may have five heirs, four of whom want to let the property to a promising tenant. The fifth, for personal or financial reasons, refuses. Under French law, that single refusal is decisive. The majority cannot override the minority. The four willing co-owners cannot grant the lease without the fifth. Their options are limited to the judicial mechanisms described below.

Acts of Normal Exploitation vs. Acts of Disposition

The distinction between acts that require unanimity and those that do not rests on the category of the act. A majority of two-thirds of undivided shares is sufficient for acts of normal exploitation (Art. 815-3 al. 1 and 2). Granting a commercial lease is emphatically not a normal exploitation act: it commits the property, removes the co-owners' ability to use it freely, and triggers the full statutory protection of the commercial lease regime for the tenant. Courts have been clear on this classification, and there is no ambiguity under French law.

What does fall within normal exploitation, by contrast, are acts of day-to-day property management: collecting rents under an existing lease, carrying out routine maintenance, paying property expenses, and renewing insurance policies. These do not require unanimity and can be handled by a mandated manager or by the majority of co-owners.

Delegating Authority: The Mandate

Co-owners who wish to avoid the practical difficulty of requiring all parties to be present and willing for every commercial lease transaction may put in place a mandate (mandat) authorising one or more of their number, or a third party, to conclude or renew a commercial lease on their behalf. This is permitted under Article 815-3 of the Civil Code, subject to strict conditions.

The mandate must be:

  • Special (spécial) — it must identify the specific operation authorised and the names of all the mandating co-owners. A general mandate to "manage the property" does not extend to granting a commercial lease (Cass. 3e civ. 10-11-2004).
  • Unanimous — it must be given by all co-owners, not merely a majority.
  • Express — a tacit mandate does not suffice to validate the conclusion or renewal of a commercial lease on property in indivision (C. civ. Art. 815-3 al. 8).

The mandate may be revoked, but only with the agreement of all co-owners who originally granted it. Where the mandate is included in a convention d'indivision (the formal agreement governing the co-ownership), it is treated as part of the governance framework of the indivision.

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The Manager's Structural Limitation

Where co-owners have appointed a gérant (manager) under a convention d'indivision (Art. 1873-5 C. civ.), one might expect the manager to have power to conclude commercial leases. They do not. The decision to grant a commercial lease must be taken unanimously even in a managed indivision (Art. 1873-8 al. 1). Co-owners may modify this default by providing in the convention that a different majority applies — but they cannot give the manager personal power to decide alone: any clause purporting to extend the manager's powers in this way is deemed unwritten (Art. 1873-6 al. 2). This is an absolute structural limit that no drafting can circumvent.

The Three Judicial Routes Around Deadlock

When unanimity cannot be achieved — because one co-owner refuses, is unavailable, or is legally incapacitated — French law provides three judicial mechanisms that may enable a commercial lease to be granted despite the absence of full agreement.

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Judicial Representation of an Incapacitated Co-Owner (C. civ. Art. 815-4)
Where one co-owner is unable to express their will — through geographical absence, health problems, legal incapacity, or any other cause — another co-owner may apply to court for authorisation to represent them. The court determines the scope of the representation (general or specific to the lease). The representative then acts in the absent or incapacitated co-owner's name, giving that co-owner's "consent" to the lease. This route is limited to genuine inability to express a will, not mere unwillingness.
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Judicial Authorisation Over a Blocking Co-Owner (C. civ. Art. 815-5)
Where one co-owner's refusal to consent to the grant or renewal of a commercial lease endangers the common interest (met en péril l'intérêt commun), a co-owner may apply to court to be authorised to conclude or renew the lease alone, notwithstanding the opposition. Urgency is not required (Cass. 1e civ. 12-7-2001). Courts assess "common interest" broadly: an opposition motivated by personal or financial leverage rather than genuine property management concerns has been held to endanger common interest (CA Rouen 15-6-1999). A refusal that would expose the indivision to a significant eviction indemnity liability may also qualify. The judicial authorisation makes the lease opposable to all co-owners, including the one who opposed it — though it creates no personal obligations against that co-owner.
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Emergency Measures and Provisional Administration (C. civ. Art. 815-6)
The president of the tribunal judiciaire may order any urgent measures required by the common interest, including authorising a specific act of disposition such as granting a commercial lease. They may also appoint a provisional administrator for the indivision — who may be a co-owner or a third party — with powers defined by the court. The court may give the administrator power to conclude commercial leases. This route is used where the management of the indivision is entirely paralysed and normal functioning of the co-ownership is impossible. Whatever the scope of the administrator's mandate, they cannot act against the unanimous will of all co-owners.

What "Endangering Common Interest" Means in Practice

The Art. 815-5 route is the most commercially important and requires careful analysis of what courts recognise as endangering common interest. From the case law, the following scenarios have been held or suggested to qualify: a blocking co-owner who first opposed for reasons of personal pride then sought to monetise their consent; a refusal that would require the other co-owners to pay a very substantial eviction indemnity to a departing tenant; and a refusal that would leave commercially valuable premises vacant without income. What does not qualify is a genuine disagreement between co-owners on commercial terms — courts will not substitute their business judgment for that of a dissenting co-owner who has rational property management reasons for refusing.

The Irregular Lease: What Happens When Only One Co-Owner Signs

When a French commercial lease is granted over property in indivision by only one co-owner, without the consent of the others and without judicial authorisation, the consequences are serious and affect the tenant's position profoundly.

Valid Between the Parties, Unenforceable Against the Others

The irregular lease is valid in the relationship between the signing co-owner and the tenant (Cass. 1e civ. 7-11-1950). The co-owner who signed is personally bound: they must ensure the tenant's peaceful enjoyment and cannot invoke their own lack of authority to escape their contractual obligations (Cass. 3e civ. 30-4-1969). But the lease is unenforceable against (inopposable à) the non-consenting co-owners (Cass. 1e civ. 27-10-1992 n° 90-21.173). Those co-owners are not bound by the lease, cannot be held to its terms, and are not required to recognise the tenant's statutory rights to renewal or compensation.

Unenforceable Against Third-Party Buyers

More seriously for the tenant, an irregular lease over property in indivision is also unenforceable against a third-party buyer of the property — even if the lease was registered with the tax authorities (Cass. 1e civ. 30-6-2004 n° 1138). This means that if the indivision is partitioned and the property is sold, or if one co-owner's share is transferred, a buyer who acquires without knowledge of the lease is not bound by it. The tenant's only recourse is against the co-owner who granted the irregular lease.

Consolidation on Partition: The Tenant's Gamble

The ultimate fate of the tenant under an irregular lease depends on the outcome of the partition of the indivision.

Property attributed to signing co-owner on partition
The lease is consolidated. It becomes fully effective and enforceable from the date of partition. The tenant's position is retrospectively secured. Statutory renewal rights apply normally.
Property attributed to a different co-owner on partition
The lease is extinguished. The tenant has no enforceable right against the new owner. The tenant's remedy is a damages claim against the co-owner who granted the irregular lease for breach of the peaceful enjoyment guarantee — not recovery of the premises.

Incapable Co-Owners Among the Indivisaires

Where one of the co-owners in an indivision is a minor or a protected adult (under guardianship, curatorship, or other protective measure), the decision to grant a commercial lease must comply with both the unanimity rule under the indivision regime and the specific protective rules applicable to that person. For a minor under guardianship, the guardianship judge's authorisation is required. For an adult under curatorship, the curator's assistance is needed. These requirements are cumulative: the unanimous agreement of all co-owners must include the agreement of the incapable person's legal representative, properly authorised.

Where a conventional indivision has appointed a manager and one of the co-owners is under a protective measure, the decision to conclude a commercial lease cannot be taken other than unanimously — the protective measure does not change this. For the protected person's share specifically, the decision must be taken in accordance with their protective regime. The presence of a protected co-owner therefore adds a procedural layer on top of the already demanding unanimity requirement.

When Indivision Arises in Practice: Succession and Matrimonial Contexts

For international clients dealing with French commercial property, indivision most commonly arises in two contexts: succession and the dissolution of a matrimonial community.

On the death of a French property owner, the heirs immediately become co-owners in indivision of all the deceased's property, including any commercial premises. Until a partition (partage) is carried out, all decisions about those premises — including whether to maintain, renew, or grant a commercial lease — require the unanimous agreement of all heirs. Where heirs are numerous, geographically dispersed, or in disagreement about the estate's management, this creates obvious practical difficulties for tenants and for the estate alike.

On the dissolution of a French matrimonial community (by divorce, separation, or death of one spouse), the community assets become jointly owned by the two former spouses (or by the surviving spouse and the estate of the deceased). Again, any commercial lease decision requires unanimity. Divorced spouses who are obliged to manage a commercial property together pending partition must cooperate on lease decisions or seek judicial authorisation if they cannot.

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Practical Recommendation: Structure Out of Indivision Before Letting

For co-owners who intend to let commercial premises, the most effective solution to the unanimity problem is to transfer the property out of indivision before signing a lease. The standard vehicle is the société civile immobilière (SCI) — which can hold property for several co-owners with a management structure and majority voting rules — or partition where practicable. An SCI can delegate lease decisions to its manager with appropriate statutory powers, eliminating the unanimity constraint entirely. The transfer cost and tax implications of moving out of indivision must be weighed against the ongoing management friction of remaining in indivision, but for properties intended for long-term commercial letting, the SCI structure almost always proves the better solution.

Indivision and French Commercial Leases: The Essentials
Indivision defined: concurrent, undivided rights over the same property without physical separation. Arises involuntarily on death of a property owner (immediate indivision between heirs) or dissolution of matrimonial community; or voluntarily by joint acquisition. Has no legal personality of its own.
Unanimity required (C. civ. Art. 815-3; Cass. 3e civ. 3-3-2009): granting a French commercial lease is a disposal act — not an act of normal exploitation — and requires unanimous consent of all co-owners. A two-thirds majority is insufficient. Refusing renewal also requires unanimity (Cass. 3e civ. 18-4-1985). A single co-owner can block both the grant and the refusal of renewal.
Absolute nullity if signed "on behalf of the indivision" (Cass. 3e civ. 16-3-2017 n° 16-13.063): the indivision has no legal personality and cannot be a contracting party. A lease signed on behalf of the indivision as an entity is null and void by absolute nullity.
Mandate conditions (C. civ. Art. 815-3 al. 7–8): a mandate to conclude a commercial lease must be special (identifying the specific operation), unanimous (all co-owners), and express (tacit mandate insufficient). A general property management mandate does not extend to granting a commercial lease (Cass. 3e civ. 10-11-2004). The manager of a conventional indivision cannot conclude a commercial lease alone; any clause granting such power is deemed unwritten (Art. 1873-6 al. 2).
Three judicial routes around deadlock: (1) judicial representation of an incapacitated co-owner who cannot express their will (Art. 815-4) — limited to genuine inability, not unwillingness; (2) court authorisation over a blocking co-owner whose refusal endangers common interest (Art. 815-5) — urgency not required; makes the lease opposable to all co-owners including the objector; (3) emergency measures / provisional administrator with court-defined powers (Art. 815-6) — used where the indivision is entirely paralysed.
Irregular lease (only one co-owner signs without authority): valid between the signing co-owner and tenant (signing co-owner personally bound; cannot invoke own lack of authority — Cass. 3e civ. 30-4-1969). Unenforceable against non-consenting co-owners (Cass. 1e civ. 27-10-1992) and against third-party buyers (Cass. 1e civ. 30-6-2004). Fate depends on partition: if property attributed to signing co-owner → lease consolidated; if attributed to another co-owner → lease extinguished; tenant's only remedy is damages against signing co-owner.
Incapable co-owners: where a co-owner is a minor or protected adult, the decision to grant a commercial lease must comply with both the unanimity rule and the protective regime applicable to that person (guardianship judge's authorisation; curator's assistance). These requirements are cumulative.
Practical recommendation: for co-owners intending to let commercial premises long-term, transferring the property to a société civile immobilière (SCI) before concluding the lease eliminates the unanimity constraint entirely. The SCI can delegate lease decisions to its manager with statutory majority voting powers.
Dealing with Jointly Owned French Commercial Property?

Whether you are an heir trying to manage inherited commercial premises, a tenant whose landlord is one of several co-owners, or an investor acquiring co-owned property with a sitting tenant, our guides and legal contacts are here to help you navigate the indivision rules and structure the arrangement correctly.

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This article is for general information and educational purposes only. It does not constitute legal advice and does not create a lawyer-client relationship. Laws and regulations may have changed since publication. Always seek qualified French legal advice before concluding, assigning, or terminating a French commercial lease involving property held in indivision.