In a recent Court case, a property had been purchased by two friends: Mr. Logger and Mr. Heads. The completion deed included a clause stating that the first of the co-owners to die would be considered as never having had any right of ownership on the property. As a result, this clause allowed the surviving co-owner to become the sole owner who would be deemed as such since the day of purchase. This clause is known as a tontine clause (or clause d'accroissement).
Over 15 years later, Mr. Heads got married, and as a result, Mr. Logger requested that the property was sold and the price divided equally. Mr. Heads refused and Mr. Logger tried to force the sale in Court.
After Mr. Heads request was rejected by the Court, he appealed and the Court of Appeal of Aix-en-Provence confirmed the first decision: as the parties are bound by a tontine clause, it prevents them from being subject to the normal rules of indivision (which can be likened to the UK tenancy in common) and therefore nobody, not even a judge, can force a sale.
As a result, the parties will only be unbound upon the death of Mr. Heads or Mr. Logger.
This decision is a classic one and is not uncommon amongst British owners, in particular because many notaires use this option as a knee-jerk reaction with foreign buyers.
The tontine is a method of avoiding the effect of the forced heirship rules by enabling a surviving co-owner to “inherit” the property free of the rights of any heir or beneficiary.
In case of dispute (including in case of divorce), this situation can rapidly become an unsolvable problem; at least as long as the co-owners are still alive.
It is always important to check that a tontine clause is adapted to the buyers’ situation (and that the notaire does not include such clause without it being requested by the buyers) and advice should be sought before making such decision.
Finally, if a tontine clause has already been included in the title deed, it is still possible to cancel it provided that all co-owners agree to it.
If you are not sure whether a tontine clause was added on purchase, I would be glad to check this for you free of charge.