Ways to establish usufruct, duration and extinction
Real Estate
What is usufruct?
Article 467 of the Civil Code defines usufruct as the "right to enjoy the property of others with the obligation to preserve its form and substance, unless the title of its constitution or the law authorizes otherwise".
Thus, when a person possesses the usufruct of property, he has the right to use and enjoy it, but does not own it. From our law firm, we advise that before constituting a usufruct you consult a professional.
How can usufruct be constituted?
The usufruct can be constituted by Law or by the will of the constituent. It can be established by contract, being necessary to be the owner of the thing and having the capacity to dispose. The usufruct can be constituted, for a determined period of time
Can usufruct be constituted under a condition of suspension?
Yes, the usufruct can be constituted under a suspensive condition (for example, I donate to Mary the usufruct of a property if she marries) or a resolutory condition (I donate to Mary the usufruct, but her right expires when she turns 30, without having married).
Are there other forms of incorporation?
In the case of usufruct over real estate, the contract must be registered in the property registry as any other real right.
Similarly, usufruct can be constituted by will, and can even be for several persons jointly or successively.
Finally, usufruct may be constituted by law, as in the case provided for in article 430 of the Civil Code, in the case of property acquired by minor children where the administration and half of the usufruct corresponds to those exercising parental authority.
What are the obligations of the usufructuaries?
Drawing up an inventory, in which, before entering into the enjoyment of the property, the usufructuary has to appraise the movable property and check the state of the property, in order to guarantee the restitution of the property and, if necessary, compensation for abusive use.
Provision of a guarantee. With the exception of parents who are not obliged to give it, the purpose of the deposit is to guarantee that things will be used in moderation and that they will be returned to the owner with their accessions, not worsened or deteriorated by their negligence.
Payment of ordinary contributions and charges
If it is free of charge, the usufructuary must make the repairs necessary to maintain the property, unless the need arises from old age, intrinsic vice or serious deterioration prior to the usufruct.
To bring to the attention of the owner the disturbance of his right.
To use the thing with care or diligence, but misuse does not extinguish it.
At the end, he must hand over the thing or right to the owner, and to return the things in the same kind, quantity and quality, and if this is not possible, to restore its value.
What are the rights of the usufructuary?
They consist of the right to use or enjoy the thing, to receive the natural, industrial and civil fruits. He may transfer his rights, lease them and encumber them, and may assign his rights to others.
What are the causes of the extinction of the usufruct?
Death of the usufructuary if it is not successive
Expiry of the term if it is on time
Compliance with the condition if it was subject to a resolutory condition
By consolidation, when the usufruct and the bare ownership fall into one person
By extinctive prescription
By resignation of the usufructuary
For total or partial loss of the thing
By cessation of the right which constituted it
Contact Forcam Lawyers, and our lawyers specializing in usufructs will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.
Article 467 of the Civil Code defines usufruct as the "right to enjoy the property of others with the obligation to preserve its form and substance, unless the title of its constitution or the law authorizes otherwise".
Thus, when a person possesses the usufruct of property, he has the right to use and enjoy it, but does not own it. From our law firm, we advise that before constituting a usufruct you consult a professional.
How can usufruct be constituted?
The usufruct can be constituted by Law or by the will of the constituent. It can be established by contract, being necessary to be the owner of the thing and having the capacity to dispose. The usufruct can be constituted, for a determined period of time
Can usufruct be constituted under a condition of suspension?
Yes, the usufruct can be constituted under a suspensive condition (for example, I donate to Mary the usufruct of a property if she marries) or a resolutory condition (I donate to Mary the usufruct, but her right expires when she turns 30, without having married).
Are there other forms of incorporation?
In the case of usufruct over real estate, the contract must be registered in the property registry as any other real right.
Similarly, usufruct can be constituted by will, and can even be for several persons jointly or successively.
Finally, usufruct may be constituted by law, as in the case provided for in article 430 of the Civil Code, in the case of property acquired by minor children where the administration and half of the usufruct corresponds to those exercising parental authority.
What are the obligations of the usufructuaries?
Drawing up an inventory, in which, before entering into the enjoyment of the property, the usufructuary has to appraise the movable property and check the state of the property, in order to guarantee the restitution of the property and, if necessary, compensation for abusive use.
Provision of a guarantee. With the exception of parents who are not obliged to give it, the purpose of the deposit is to guarantee that things will be used in moderation and that they will be returned to the owner with their accessions, not worsened or deteriorated by their negligence.
Payment of ordinary contributions and charges
If it is free of charge, the usufructuary must make the repairs necessary to maintain the property, unless the need arises from old age, intrinsic vice or serious deterioration prior to the usufruct.
To bring to the attention of the owner the disturbance of his right.
To use the thing with care or diligence, but misuse does not extinguish it.
At the end, he must hand over the thing or right to the owner, and to return the things in the same kind, quantity and quality, and if this is not possible, to restore its value.
What are the rights of the usufructuary?
They consist of the right to use or enjoy the thing, to receive the natural, industrial and civil fruits. He may transfer his rights, lease them and encumber them, and may assign his rights to others.
What are the causes of the extinction of the usufruct?
Death of the usufructuary if it is not successive
Expiry of the term if it is on time
Compliance with the condition if it was subject to a resolutory condition
By consolidation, when the usufruct and the bare ownership fall into one person
By extinctive prescription
By resignation of the usufructuary
For total or partial loss of the thing
By cessation of the right which constituted it
Contact Forcam Lawyers, and our lawyers specializing in usufructs will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.