Disclaimer: This article comments on a Cour de cassation decision and is for general information only. It does not constitute legal advice. French expropriation procedure is technical, the indemnity-calculation rules are case-specific, and the time limits for appealing a juge de l’expropriation decision are short and strictly enforced. If your property is the subject of an expropriation order, consult a qualified French expropriation lawyer (avocat spécialisé en droit de l’expropriation) before taking any procedural step. The English Investor accepts no liability for decisions taken on the basis of this article.
A foreign owner of three small commercial units in the Hérault gets the expropriation order. The local authority is taking the parcel for a public-interest project. The juge de l’expropriation hears the file and fixes an indemnity. The owner, dissatisfied with the number, appeals. On appeal — for the first time — his lawyer adds a new head of claim: the loss of rental income during the period he will need to find and buy a replacement property. The Cour d’appel de Montpellier grants it. The expropriating authority — the public body that initiated the taking, which under French expropriation procedure can be the State, a region, a département, a commune, or a delegated entity such as a Société d’Économie Mixte — files a pourvoi en cassation, arguing on procedural grounds that you cannot raise a new claim for the first time on appeal.
On 9 April 2026, the Third Civil Chamber of the Cour de cassation, in n° 24-15.296 (FS-B), dismissed the cassation. The lost-rent indemnity is the accessoire of the principal expropriation indemnity within the meaning of article 566 of the Code de procédure civile (CPC), and an accessoire can be invoked on appeal even if it was not raised at first instance. This is a narrow procedural decision with a useful practical edge for any foreign owner whose French property might one day be subject to a déclaration d’utilité publique: if you miss the rental-income head of claim in front of the juge de l’expropriation, the appeal stage is not closed to you.
What happened in the Hérault case
Several commercial premises owned by a private landlord were expropriated. The juge de l’expropriation du département de l’Hérault fixed the indemnité globale de dépossession — the principal payment compensating the loss of the property itself. The owner appealed, contesting the level of the principal indemnity. In his appeal pleadings, he asked the cour d’appel to grant, in addition, an indemnity for loss of rental income covering the period he would need to acquire a replacement property and put it on the rental market.
The Cour d’appel de Montpellier granted both heads of claim. The expropriating authority then sought cassation on a single, procedural ground: the lost-rent indemnity was a nouvelle prétention within the meaning of article 564 CPC, which forbids new claims on appeal on pain of irrecevabilité, raised d’office by the court if necessary. The owner had not asked for the lost-rent indemnity in front of the juge de l’expropriation, so — the argument went — he could not add it at appeal.
The Cour de cassation’s holding
The Third Civil Chamber dismissed the cassation in clean terms. The general rule in article 564 CPC — no new claims on appeal — is tempered by article 566 CPC: a party may add to the claims raised at first instance “les demandes qui en sont l’accessoire, la conséquence ou le complément nécessaire”. The lost-rent indemnity pursues the same compensatory purpose as the principal dépossession indemnity — repairing the prejudice caused by the expropriation — and therefore qualifies as its accessoire within the meaning of article 566. It is recevable on appeal even when raised for the first time at that stage.
The ruling is short and tightly reasoned, with the characteristic FS-B publication marker signalling that the Cour de cassation considers it doctrinally significant — the decision will be published in the bulletin and is intended as guidance for the lower courts.
The catalogue of accessoires — what was already settled before 9 April 2026
The 9 April 2026 ruling fits into a long line of decisions in which the Cour de cassation, often the Third Civil Chamber, has progressively enumerated the heads of indemnity recognised as accessoires of the principal expropriation indemnity. The catalogue had grown steadily over five decades:
- Éviction agricole — compensation for the loss of agricultural use of expropriated farmland (Civ. 3e, 7 nov. 1975, n° 74-70.358 P).
- Dépréciation du surplus — compensation for the loss of value affecting the portion of land kept by the owner when only part of a holding is expropriated (Civ. 3e, 28 avr. 1982, n° 81-11.243 P).
- Frais de remploi — the additional sum covering the transaction costs normally incurred to acquire a replacement property of the same nature (article R 322-5 of the Code de l’expropriation; Paris, 11 févr. 1983, JCP 1983. IV. 253).
- Frais de clôture — costs of fencing or otherwise enclosing the retained portion of the parcel where partial expropriation requires new boundaries (Civ. 3e, 14 juin 1984, n° 83-70.124).
- Déménagement — removal costs (Paris, 27 oct. 1988, JCP 1989. IV. 279).
- Dépréciation des parcelles hors emprises — loss of value on adjacent parcels owned by the same proprietor but outside the expropriation perimeter (Civ. 3e, 30 juin 1992, n° 91-70.084).
Each of these heads of claim has historically been treated as procedurally subordinate to the principal indemnity — claimants who failed to raise them at first instance have been allowed to invoke them on appeal under article 566. The 9 April 2026 decision adds the perte de revenus locatifs to this list, completing what was always logically a complete set: if removal costs and replacement costs are accessoires, the rental income lost during the same replacement period is too.
What the lost-rent indemnity actually compensates
The substantive right to a lost-rent indemnity in expropriation is older than the 2026 procedural ruling. The Cour de cassation has framed the compensable loss for over two decades in identical terms: it is “la perte de revenus locatifs, pendant la durée nécessaire à l’exproprié pour acquérir un autre bien et le donner à bail” — the loss of rental income during the period the expropriated owner needs to acquire another property and put it on the rental market (Civ. 3e, 2 juill. 2003, n° 02-70.079; Civ. 3e, 7 avr. 2015, n° 13-27.547).
Two features of that definition are worth stressing because they are the points most often misunderstood. First, the indemnity is time-bounded. It compensates the gap between dépossession and re-letting of a replacement property, not the indefinite loss of an income stream. The replacement period is decided case by case by the juge de l’expropriation, looking at local market liquidity, the specific characteristics of the property, and what a diligent owner would reasonably need to find and let a comparable replacement. Second, the indemnity is net of mitigation. If the owner has in fact re-let a replacement property earlier, or has earned any rental income during the replacement period, that amount is deducted.
A rough worked illustration. Suppose a foreign owner holds a Paris apartment let unfurnished at €2,400 a month gross. The property is expropriated on 1 March of year N. The owner identifies a replacement property and re-lets it on 1 March of year N+1, twelve months later. The lost-rent indemnity, in the simplest computation, is €2,400 × 12 = €28,800, less any rental income earned during that twelve-month gap (typically zero, by definition). On a property whose principal dépossession indemnity is, say, €600,000, the lost-rent indemnity adds nearly 5% to the total — a non-trivial amount, particularly given that the principal indemnity already captures the property’s capital value and not its income-generating function.
What this means practically for a foreign owner
The procedural opening that the 9 April 2026 decision confirms matters most to owners who, at the first-instance hearing, did not know to ask. Expropriation procedure in France is technical even for French-domiciled landlords; for a non-resident owner working through a French lawyer at a distance, it is easy to focus on contesting the principal indemnity number and miss the accessory heads of claim that fill out the package. The decision says, in effect: if you missed the rental-income claim at first instance, you have not waived it. The appeal stage is open to you, provided you appeal within the standard one-month window from the juge de l’expropriation’s decision.
The corollary, of course, is that the best strategy remains to raise everything at first instance. Appeals are slower, more expensive, and the cour d’appel is bound by the principal-indemnity framework set below — the appellate addition of an accessoire is a recovery exercise, not a re-opening of the substantive valuation. If you are the landlord of a let property facing a déclaration d’utilité publique, the indemnity claim presented to the juge de l’expropriation should systematically include every head reasonably available: principal dépossession indemnity, frais de remploi, déménagement where relevant, frais de clôture for partial expropriation, dépréciation du surplus and the surrounding hors emprises, and now — by the new ruling — perte de revenus locatifs.
Documentation is where the lost-rent claim succeeds or fails. The court will look for the lease in force at the date of dépossession, the rent roll history, evidence of occupancy continuity, and a credible market assessment of the period needed to identify and acquire a comparable replacement. For LMNP and location-meublée landlords, this is materially easier than for cash-rent informal arrangements: the rental income figures already feature in the annual non-resident tax filing (form 2042-C-PRO for furnished rental, form 2042 / 2044 for unfurnished), and the historical receipts have been declared, taxed, and documented year after year. That declarative history is some of the strongest evidence available to support the gross-rent figure used in the indemnity calculation.
How French expropriation actually works — the wider mechanics
For readers approaching expropriation procedure for the first time, the broad shape is as follows. A public authority — the State, a region, a département, a commune, or a delegated body such as a Société d’Économie Mixte (SEM) or an aménageur for a Zone d’Aménagement Concerté (ZAC) — issues a déclaration d’utilité publique (DUP) identifying the public-interest purpose and the parcels concerned. After the DUP and an enquête parcellaire, the prefect issues the arrêté de cessibilité listing the specific parcels. The actual transfer of ownership is then effected by an ordonnance d’expropriation issued by the juge de l’expropriation.
The indemnity is fixed in a parallel procedure. If the expropriating authority and the owner have not agreed an amicable settlement, the juge de l’expropriation hears each party’s valuation case and fixes the global indemnity by reasoned decision. That decision is appealable to a specialised section of the cour d’appel within one month of notification (article R 311-26 of the Code de l’expropriation). The whole sequence — from the DUP to a final indemnity decision — typically runs over two or three years, with significant variation depending on the project’s complexity, the number of parcels concerned, and the level of contestation.
The principal indemnity is calculated on the value of the property at the date of dépossession, on the basis of comparable transactions in the local market. The frais de remploi compensate, on top of the principal indemnity, the transaction costs normally incurred to buy a replacement property of the same nature — notaire’s fees, registration taxes, agency fees where relevant — and are quantified by reference to those costs under article R 322-5 of the Code de l’expropriation. The other accessoires, including now the lost-rent indemnity, are pleaded separately and supported by evidence. For owners whose property is part of a let portfolio, the indemnity package can be materially heavier than the principal-indemnity number suggests at first glance — which is precisely the reason the appellate route confirmed by the 9 April 2026 decision matters.
The procedural significance of the ruling — why FS-B
The Cour de cassation publishes its decisions with markers that signal their doctrinal weight. FS-B carries two distinct signals. FS — formation de section — means the case was heard by a section of nine to fifteen judges rather than the ordinary three-judge restricted formation, reserved for cases of more than routine difficulty. B — published in the Bulletin — signals that the Cour de cassation intends the decision as guidance for the lower courts. Together they place the 9 April 2026 ruling clearly within the doctrinally significant category, even though it stops short of the highest plenary or “B+R” (annual-report) markers reserved for the very most important decisions.
The decision also has practical reach beyond the expropriation context. Article 566 CPC governs the admissibility of accessory claims on appeal across all civil procedure, and the Cour de cassation’s reasoning — that a claim pursuing the same compensatory end as the principal claim is automatically its accessoire — will inform analogous arguments in other domains. The case is narrow on its facts; its conceptual contribution is the clean application of the “same compensatory end” test to a quantified-damages context.
The honest closing position
French expropriation procedure is rare enough that most foreign owners will never encounter it. When it does arrive, however, the process is unavoidable — the public authority’s right to compulsorily acquire property in the public interest is anchored in the Constitution and the European Convention on Human Rights, subject only to the requirement of fair and prior compensation. The 9 April 2026 ruling is a small but useful clarification: if the rental income head of claim is missed at first instance, the appeal stage remains open. For owners whose French property is let, that procedural window may be worth a year’s gross rent or more on the eventual indemnity total.
The broader French property context within which an expropriation sits — the LMNP regime mechanics that determine how the rental income was being declared, the all-in cost of buying a replacement property in Paris or another expensive market, and the parallel procedural rights of eviction for landlords facing a different kind of dispossession — all sit alongside this narrow expropriation point. None of them substitute for an avocat spécialisé en droit de l’expropriation if the expropriation order actually arrives; but knowing the procedural shape in advance makes the conversation with that lawyer materially faster.
Frequently asked questions
Does this ruling apply to residential property as well as commercial?
Yes. The 9 April 2026 case was decided on commercial premises, but the lost-rent indemnity itself has long been recognised by the Cour de cassation in identical terms for any expropriated property let to a tenant — residential or commercial. The procedural rule confirmed by the 2026 decision is not property-type specific; it applies wherever the lost-rent claim is procedurally subordinate to a principal dépossession claim.
What is the time limit for appealing a juge de l’expropriation decision?
One month from notification of the first-instance decision. The appeal is lodged with a specialised section of the cour d’appel competent for the département in which the expropriation took place. The one-month window is strict; missing it is fatal to the appeal regardless of the merit of the substantive complaint.
If my property is held through a French SCI, who claims the indemnity?
The SCI is the indemnified party, since it is the legal owner of the expropriated property. The indemnity flows to the SCI’s bank account, and the partners share it according to their respective parts. The same logic applies to the lost-rent indemnity confirmed by the 9 April 2026 ruling: the SCI claims it, the partners ultimately benefit by their pro-rata share. The decision to claim the lost-rent head is taken by the SCI’s gérant in the same way as any other indemnity claim.
What evidence supports the lost-rent claim?
The lease in force at the date of dépossession; rent receipts or bank statements showing the actual monthly income received; the historical rent roll over recent years; the annual French tax filings declaring the rental income (form 2042-C-PRO for LMNP, form 2044 or box 4BE of form 2042 for unfurnished foncier); and a credible market assessment of the period needed to identify and acquire a comparable replacement property, typically prepared by a local notary or a chartered surveyor.
Can I claim the lost-rent indemnity if the expropriation happened years ago?
Only if the procedural windows are still open. If the juge de l’expropriation decision was rendered and the one-month appeal window has elapsed, the case is closed for the lost-rent head of claim too. The 9 April 2026 ruling does not reopen decisions already final; it confirms that within the ordinary appeal window, the rental-income claim can be added even if it was not raised at first instance.
How is the replacement period decided?
Case by case, by the juge de l’expropriation. The court looks at local market liquidity, the specific characteristics of the property concerned, and what time a diligent owner would reasonably need to find and let a comparable replacement — not the time this particular owner did in fact take. Commercial property can attract longer periods than residential given the slower pace of comparable-transaction identification.
