The tontine clause is frequently inserted into an SCI’s statuts to ensure that the succession to the member‘s rights (parts d’intérêt not actions) is not constrained by forced heirship rules or by children from prior unions of one of the members.
There is now a probablity that such an SCI may be null and void from the outset, unless the bylaws ('statuts’) have been phrased leaving one or more parts d’intérêts outside the tontine arrangement, again from the very outset. That would have been unusual when these were popular.
The French Cour de cassation has handed down a ruling in April 2026 which confirmed the nullity of an SCI with such a clause covering the entire share capital of the SCI - Cour de cassation, civile, Chambre civile 3, 9 avril 2026, 25-12.992 .
This ruling may affect anyone who has set up an SCI to hold immovable property in France whose statuts include a tontine arrangement intended to ensure that the survivor of the couple or group of members takes the whole share capital on the decease of the last but one member.
Basically, where such a clause is inserted at the constitution of the SCI and addresses the whole share capital of the SCI, it offends the basic principle that a company is necessarily formed by a contract between not less than two members under article 1832 Code civi l.
Why? Because the tontine clause operates to place the survivor as the sole initial owner of the Company, from the very outset and therefore does not take place during the legal life of the company. As a result, article 1844-5 Code civil cannot operate to render the tontine clause non-écrit so as to save the company and continue it without major surgery.
A surviving member attempted to require the dissolution or régularisation of an SCI which contained such a clause.
The Cour de Cassation was very specific:
11. Une telle réunion, en ce qu’elle produit effet, non en cours de vie sociale, comme l’envisage l’article 1844-5 du code civil, mais rétroactivement, à la constitution de la société, ne relève pas des dispositions de ce dernier texte.
The SCI itself was therefore a nullity as from the very beginni ng.
I suggest that anyone who is involved in such a tontine arrangement take advice as to how to recover the situat ion.
You may need UK tax and legal advice on any attempt to rescue the position, particularly on the issues of dissolution and transfer of the underling assets whether these be movable or immovable.
Peter Harris
Overseaschambers .com