Usufruct and usufructuary rights

What is usufruct?

Usufruct comes from the formula usufructus est ius alienis rebus utendi fruendi salva rerum substantia. In other words, usufruct is a right to use (ius utendi) and enjoy (ius fruendi) another’s property. The usufruct obliges to conserve the form and substance of the thing, unless otherwise agreed. This right has the nature of a limitation of the right of ownership. The holder of this right, who has the right to use and enjoy the thing, is called usufructuary. The holder of the domain of the usufructuary good is called the bare owner. This one will not be able to make use of the thing while it is in possession of the usufructuary.

Characteristics of usufruct

• The usufruct is a real right in another’s thing. There are two rights over the thing that is the object of the usufruct. The right of ownership, which belongs to the bare owner. In addition, there is the right of usufruct, which belongs to the usufructuary.
• The object of the usufruct is not part of the patrimony of the usufructuary but of the patrimony of the bare owner.
• The usufruct is a temporary right, since a permanent separation between the property and its use is not allowed. That is to say, it can never be indefinite, it must have an established duration.
• The usufruct is a transferable right.
• The usufruct is a right of enjoyment.

How is it constituted?

According to article 468 of the Civil Code, usufruct is constituted by law, the will of the parties and by prescription. As a consequence, a distinction can be made between voluntary, legal usufructs and those constituted by acquisitive prescription or usucaption:

1. Voluntary usufruct: This type of usufruct is constituted by legal transaction mortis causa or inter vivos. Mortis causa is constituted by a Will. Inter vivos consists of an agreement between the interested parties during their lifetime. Both can be constituted by gratuitous or onerous title.
2. Legal usufruct: According to article 835 of the Civil Code, a usufruct can be constituted in favor of the widowed spouse. The third of improvement is one of the parts of the legitimate inheritance of the descendants. Until they are of age, this third is given in legal usufruct to the widowed spouse.
3. Usufruct constituted by acquisitive prescription or usucaption: The usucaption or acquisitive prescription is a way of acquiring the ownership of a good, applying the rules of this one. For these purposes, usufruct is constituted as a real right of possession.

What powers and duties do the parties have?

The powers and duties in the usufruct will be determined by the constitutive title of the usufruct. This happens in the case of the voluntary usufruct. Otherwise, the Civil Code establishes the powers and duties of each party.

Si te ha interesado este artículo no dudes en leer:

The Presumption of Good Faith of the Rights in Rem Owner

Article 34 LH protects acquisitions in good faith by transmission of someone who did not have the power to dispose of.

The powers of the usufructuary:

(a) Usufruct: As previously explained, the usufructuary has the power of possession of the thing usufructuated. That is to say, he has the power of use and enjoyment of the same.

At the same time, he also has the right to take possession of the natural or civil fruits of the thing. Natural fruits are the productions of the land, and products of the animals. Civil fruits are the rent of the buildings, the price of the lease of land and other analogous ones. The natural fruits produced during the duration of the usufruct belong to the usufructuary. Those natural fruits pending when the usufruct is extinguished belong to the bare owner.  The civil fruits correspond to one or the other in proportion to the duration of the usufruct according to article 474 of the Civil Code.

The usufructuary may make useful or recreational improvements, but must undo the alterations at the end of the usufruct. The latter is essential to respect his obligation to preserve the form and substance of the thing. In the case of improvements, the usufructuary has no right to be compensated for them.

b) Transfer: The usufructuary may transfer the right of usufruct to a third party himself, as well as the use of the usufruct. The transfer of the usufruct is essentially understood as a lease. In this case, the lease is extinguished when the usufruct is extinguished. The transfer of the right of usufruct is also possible in the case of mortgage. Like the lease, the mortgage will be extinguished when the usufruct is extinguished.

Duties of the usufructuary:

(a) Inventory: before taking possession of the assets, the usufructuary must draw up an inventory of the property. This is stated in Article 491.1 of the Civil Code.

b) Bond: The usufructuary must provide a bond as a collateral for the performance of the obligations.

c) Care of the property: As established in article 497 of the Civil Code, the usufructuary must take care of the property as a good parent.

d) Conservation and repairs: Article 500 of the Civil Code states that the usufructuary must take care of the expenses of conservation. These expenses include the maintenance and ordinary repairs that the usufructuary needs.

e) Custody: The usufructuary must inform the bare owner of any act of a third party that may damage the right of ownership.

f) Payment of charges, costs and interests: The usufructuary must pay the charges and taxes of the usufructuary property, according to article 504 of the Civil Code.

g) Delivery of the usufruct to the owner: Once the usufruct is extinguished, the usufructuary has the obligation to return the property to the bare owner.

Powers of the bare owner:

The latter has the right of ownership. He may, therefore, respecting the right of usufruct, dispose totally or partially of his right of bare ownership (Article 489) and carry out works, improvements or plantations (Article 503).

Duties of the bare owner:

He must carry out extraordinary repairs and the payment of taxes levied on the right of ownership.

Conclusion

• The usufruct is a right to use and enjoy another’s property, it obliges to conserve the form and substance of the thing.
• The usufruct is a real right, a temporary right, a transmissible right and a right of enjoyment.
• A distinction can be made between voluntary, legal usufructs and those constituted by acquisitive prescription or usucaption.
• The powers and duties in the usufruct will be determined by the constitutive title of the usufruct. Failing that, they are regulated in the Civil Code.

If this article has been of interest, we also suggest you to read the following article published on our website:

About third party occupants