In this article, I want to focus specifically on the purchase of a (second) property in France and by minor children, with or without a reserved usufruct in favour of the parents.
Is this possible, and if so, what do you have to consider?
Court approval
A purchase by a minor can be made without court approval/authorisation if the child does not take out a loan for the purpose of the purchase.
In other words, if the minor child has his own resources, a purchase can be made without court intervention, provided both parents give their consent.
Position parent
Although it can be fiscally advantageous to have an immovable property already registered in children's names, there are snags, especially where the position of the parents is concerned.
If all 100% of the property is owned by the children, they also have power of disposition over the property. It is true that a usufruct can be established for the benefit of the parents, but - unlike in the Netherlands - this concerns only the parents' right to the fruits. There is no right for the usufructuary (parents) to alienate (sell) or encumber (make up). They may only use the property.
Of course, this does make the parents largely dependent on the children. Perhaps not so important as long as the children are minors (under 18 years of age) and therefore lack power of disposition, but as soon as the children turn 18, they are legally mature and therefore have full power of disposition with respect to the registered property
They could therefore sell the property independently. Admittedly with the reserved usufruct on it, but still. Moreover, for any maintenance to be done and any investment to be made, the parent will need the cooperation of the children. Not to mention the position of the children's partner/spouses (sons-in-law and daughters-in-law).
If your children are married in community of property, chances are that your children-in-law will become part-owners of your property. As long as your child's marriage continues to go well, no problem, but in the event of a divorce, the stage is set. You will therefore need the cooperation of an ex-son-in-law or ex-daughter-in-law and the latter will not be immediately inclined to provide you with unconditional service, especially if the divorce with your child does not go smoothly. An unenviable position, therefore.
Now I venture a conclusion with possible tips for you.
Tip 1: Keep a small share for yourself
When your children buy, always keep a small share for yourself. Even if this is only 1%, it does ensure that you w children always need your cooperation for a sale.
After all, a prospective buyer has little use for 98% ownership of a property. This gives you a stronger position vis-à-vis the children. Without your signature, no valid transfer.
Tip 2: Always take into account your child's possible divorce
Even if your children's relationship with their partners is as good as ever and you have - in your eyes - hit it off with your son-in-law or daughter-in-law, there is of course a chance that a marriage or relationship of your child may break up.
If you did not make any arrangements and your child was married in community of property, the divorce will make an ex-son-in-law or ex-daughter-in-law co-owner of your property and for half of your child's share.
The possible consequences of this ( and related costs) I don't think I need to explain to you.
Tip 3: Make clear arrangements with your children regarding the use of the home and payment of expenses
Even if they are your own children, approach the use of the home and payment of expenses on an arm's length basis. Clearly define who is responsible for the maintenance of the home and related costs. The same applies to the use of the home and related costs. Preferably put these matters in writing in an agreement.
Tip 4: reflect before you begin
Beforehand, have a clear calculation made of the potential benefit to be gained by naming the home to the children, so that you can make an informed choice between tax benefit and the possible (practical) consequences, some of which have already been reviewed.
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