Usufruct

The usufruct is the legal power that grants a person the possession, but not the disposition, of a foreign property for a specific period of time and imposes the duty of – once the period has expired – to restore what has been to its owner.

What does it consist of

The right to be the usufructuary of an asset is attributed to a person by virtue of what is expressed in the legislation , the private agreement or by acquisitive prescription. The sole owner or legal owner hands over the keys to the usufructuary who, having made the inventory of the assets / assets and offered the required guarantees, has the power to profit from them for a specific time, without actually modifying their essence or selling them.

The usufructuary is obliged to restore what has been to the undisputed owner on the date set in the constitutive resolution, as a public registry rule.

Usufruct characteristics

• It is a real right over material goods or assets, it implies the protection, enjoyment and possible acquisition of these.
• Limited in nature. It contemplates the proper use of the property , which must be returned to its owner “in the same form and substance” in which it was received.
• It is a temporary benefit, it has a start and end date , expressed in the law or constitutive resolution. Some titles are for life.
• Grants the right to profit from all or only part of the assets.
• The usufruct right cannot be assigned to other people, it is non-transferable. Even if its constitutive resolution does not prohibit it and it is granted to third parties (for free or remunerated), the person responsible to the bare owner will continue to be the direct usufructuary.
• The owner joint gets rid of his duties and obligations with the property. It cannot interfere with the right of the usufructuary.
• If the property is sold or transferred by its legal owner, he will be selling only the material good, not the right of usufruct. The new owners must respect compliance with the provisions of the constitution.

Source

Usufruct, a term derived from the Latin words: usus = use and fructus = fruit, has its foundation in Roman law . In time immemorial, women came to belong to their husbands’ families, losing all connection with their parents and any kind of benefit, when they were widowed they were left “naked” unprotected. The usufruct then arose as a pact, in which the husband left the widow the power to take advantage of the assets, without harming the assets of the children, future heirs.

From the nakedness or invalidity of the widow, and after the pact, of the children, comes the word “knot” of owner knot.

The pact between the Romans, later made a code, allowed the joint owners to demand the replacement of the property once the usufruct had expired and the conditions specified therein had been fulfilled.

It can be considered an appendix of family inheritance law.

Types of usufruct

It can be typified according to the nature, duration and purpose of the usufruct.

According to its nature, the usufruct is constituted by:

• Legal provision. It is embodied in the Civil Code.
• The will of individuals. It is an agreement, established between the living or by will (mortis causa).
• Purchasing prescription or usucapion. A kind of right to buy and sell, which contemplates the prior enjoyment of the property.

Depending on its duration, the right can be:

• Temporary: The period of duration must be specified in the norm, title or constitutive resolution.
• Lifetime: It is valid until the death of the beneficiary or his explicit resignation.

Depending on the object, the usufruct of:

• Rights, as long as they are not very personal. They are the object of usufruct: assets and profits generated.
• Material assets: movable and immovable. Some deteriorable, consumable capital and others of an animal or vegetable nature also become usufruct objects. In the latter cases, they will also be expendable, used and returned, or replaced by others of the same class and value.

Rights and obligations

The total or partial right over the property of another and its fruits, generates duties. The usufructuary has the obligation to:

• Prepare the list of goods to receive and enter the state in which they are in it, to find out how they will be returned once the right of usufruct ends.
• Present guarantees that the property will be returned in its form and essence. A bond will guarantee that each thing is used according to its destiny, for which it was created.
• Repair the damage caused by the misuse of the property or compensate the owner.
• In the case of consumable material goods, the usufructuary must replace the thing with another of identical quality, or pay the amount of the value. In the case of livestock, replace with offspring of the same breed the animals that have disappeared, hunted or that have died from unnatural causes.
• The user of lands and plantations may put them to produce and benefit from all their natural fruits for the duration of the agreement. Once the contract is finalized, the pending fruits to be harvested will belong to the owner.

Extinction

The right to usufruct ends when:

• The set period expires and the conditions of its constitution have been met.
• The usufructuary resigns , provided that there is no fraud or liens on the asset or right. The resignation becomes effective once the amounts have been paid.
• Full ownership is consolidated. When the usufructuary acquires the property, usufruct and bare ownership fall on the same person.
• Whoever constituted the usufruct loses the right to the usufruct asset.
• There is a total loss of the tangible asset that is the object of usufruct. If the loss is the product of a forced seizure, the owner must indemnify the usufructuary during the period established in the constitutive resolution.
• The usufructuary does not fulfill his functions , he stops using his right during the time provided. It’s called an extinctive prescription.
• The beneficiary dies . When the right falls on a single person and he dies, the obligations to the legal owner also die. If the usufruct belongs to several, it extinguishes only when the last of the usufructuaries dies or the term has expired.

Importance

The establishment of a usufruct is favorable if you want to grant another person a good or right, for their enjoyment, without the latter being able to sell or dispose of it. The owner does not lose power over his property, he only cedes his profit to that other person for a specified period.

The usufruct must be established in a public resolution and establish the conditions for its fulfillment or deposition.

It is a useful agreement for those who for a certain reason cannot take care of the furniture and real estate, in this way they guarantee their occupation and care. It is not viable with goods or non-expendable things.

It is widely used to handle inheritances not stipulated in the inheritance law. Also to donate or sell some good being certain that it will have the proper use.

Examples of usufruct

An example of a voluntary usufruct is that agreed by a person after his death. In his will, Juan grants his son Pedro the disposition of his company and all the profits it generates, until Juan Andrés – Juan Andrés’ grandson and sole owner of the company – reaches the age of majority.

Money is a consumable usufruct thing. Laura acquires the usufruct right over one million euros, takes them and invests them. Regardless of the destination of the capital, profits or loss that he has had, once the established period expires, he must return the initial amount to the bare owner.

A usufruct stipulated in the law is that of the widowed spouse, who, having not been divorced or separated in fact, acquires the benefit over one or all the parts of the inheritance, according to the existence of ascendants or descendants of the deceased.