The loan for use, also known as commodatum, allows an owner to make a dwelling available to a person without charging rent. This free provision is governed by Articles 1875 to 1891 of the Civil Code. As soon as any amount, even a modest one, is paid in exchange for the enjoyment of the property, the arrangement shifts to a rental regime, with all the obligations that arise from it.
Loan for use and SCI: a governance trap often overlooked
When the housing is owned outright by an individual, the free provision does not pose any decision-making difficulties. The situation becomes complicated when the property is held by a real estate civil society.
The Court of Cassation clarified, in a ruling dated May 2, 2024 (3rd civil chamber, no. 22-24.503), that the manager of an SCI cannot unilaterally decide to lend a dwelling to a partner. If the statutes do not provide for this possibility, the decision falls under the general assembly of partners, in accordance with the conditions of a statutory amendment.
In practice, a manager who makes an apartment available to a family member without prior voting engages their personal liability towards the other partners. To secure the free cohabitation of a dwelling held via an SCI, drafting a general assembly resolution remains the only reliable route.
Charges paid by the occupant: where does disguised rent begin?
The free nature of the loan for use does not mean that the occupant pays nothing. Recent case law clearly distinguishes two categories of expenses.
- Operating charges (electricity, heating, internet subscription, minor maintenance repairs) can be borne by the occupant without challenging the qualification of loan for use.
- Any regular contribution that resembles rent, even partial, shifts the relationship into the rental regime, with the obligation to draft a lease.
- The determining criterion is the nature of the amount paid: if it constitutes the direct counterpart for the enjoyment of the dwelling, it is requalified as rent.
This distinction may seem abstract, but its consequences are very concrete. An owner who receives a flat monthly contribution covering both charges and part of the rental value exposes themselves to a tax requalification. The administration may then require the declaration of rental income and apply the corresponding penalties.
Tax declaration and housing tax for free accommodation
The owner who lends a dwelling for free must report it in their income tax declaration. The property does not generate rental income, but it must still appear in the declaration of occupancy of real estate submitted to the tax authorities.
For the hosted person, the situation depends on their attachment to the tax household. If they constitute an independent household, they must declare their address and their situation of free accommodation. This declaration serves as the basis for establishing the housing tax on secondary residences, if applicable.
A dwelling lent for free is exempt from the tax on vacant housing, provided that the effective occupation is declared. For the owner of a secondary residence, this exemption represents a direct advantage.
Certificate of free accommodation
The hosted person often needs proof of residence. The owner can draft a certificate of free accommodation, accompanied by a copy of their ID and proof of ownership. This document is accepted by the CAF, the bank, or the prefecture for routine administrative procedures.
End of the loan for use: how to reclaim your dwelling
The recovery of the property is the most frequent point of friction. Two scenarios coexist.
When the loan for use contract specifies a fixed duration or a precise use (for example, accommodation during studies), the owner reclaims the dwelling at the end without any particular formalities. The occupant has no right to remain in the premises.
In the absence of a fixed duration, the situation becomes complicated. The owner must then prove a legitimate personal or family need to terminate the loan, or demonstrate that the agreed use has ended. If the occupant refuses to leave, the owner cannot proceed with an eviction by their own means. They must go to the judicial court to obtain an eviction order, which involves sometimes lengthy procedural delays.
Drafting a written loan for use contract constitutes the best protection. This document is not mandatory, but it sets the duration, conditions of restitution, and distribution of charges. Without a written agreement, the owner finds themselves in a fragile position in case of a dispute.
Impact on social benefits for the hosted person
Free accommodation alters the calculation of certain social benefits. The CAF takes into account the housing situation to determine the amount of housing assistance and the RSA.
A person hosted for free cannot receive housing assistance (APL or ALS), as they do not pay rent or fees. However, the absence of housing charges reduces the amount of the housing allowance deducted from the RSA, which can in some cases slightly increase this benefit.
The occupant must declare their situation to the CAF to avoid an overpayment. Failing to make this declaration exposes them to retroactive reimbursement of benefits unduly received, plus penalties.
The loan for use contract, even if drafted privately, remains the foundation of any secured free cohabitation. Without it, both parties expose themselves to administrative, tax, and legal difficulties that initial goodwill alone cannot prevent.