El usufruct It is a right that allows the enjoyment and possession of other people's assets, with the obligation to preserve them. Through usufruct, a person can use and benefit from an asset without owning it. This right is regulated in the articles 467 and following of the Civil Code and it is established by means of an agreement or contract between the bare owner (owner of the asset) and the usufructuary (person who receives the usufruct).

In the Barcelona notary Bosch-Bages we can advise you on everything related to the usufruct and clarify any questions that may arise.

Parties involved in the usufruct

Three main parties are involved:

  • Usufructuary: It is the person or entity that has the right of usufruct over the property. The usufructuary has the right to use and enjoy the property, as well as to receive the fruits or benefits that it generates. It can be a physical or legal person.
  • proprietary knot: It is the person or entity that holds ownership of the property. Although he retains ownership of the property, the bare owner does not have the right to use and enjoy the property while the usufruct lasts.
  • bare owner: In some cases, especially in situations of lifetime usufruct, the naked owner can be distinguished as a third party. The naked owner is the one who owns the property, but only acquires full ownership and control over it after the extinction of the usufruct.

These three parties have specific roles and rights within the usufruct. The usufructuary has the right to use and enjoy the property, preserving its form and substance (unless the title of its constitution or the law authorizes otherwise). While the bare owner retains ownership of the property and can exercise certain limited rights. Although you cannot use it while the usufruct lasts. The relationship between these parties is governed by the terms and conditions established in the contract or by applicable law.

Characteristics of the usufruct

These are some of its main features:

  • temporary law: The usufruct is a temporary right. That is, it is established for a certain period of time or until a specific event occurs, such as the death of the beneficial owner.
  • right of enjoyment: The usufructuary has the right to enjoy and use the property subject to the usufruct. He can live in a house, use land for cultivation, receive the fruits or yields of a property, among others.
  • Harvesting right: It also includes the right to obtain the fruits, products or benefits generated by the asset. For example, if it is a usufruct on an agricultural farm, the usufructuary has the right to collect and sell the agricultural products.
  • Limitations on the alienation: The usufructuary cannot sell, transfer or encumber the asset subject to the usufruct, since he only has the right of use and enjoyment, but not ownership. However, he can lease or assign his usufruct right to another person, as long as it does not exceed the legal limits.
  • Obligations of the usufructuary: The usufructuary has the obligation to keep the property in good condition and use it in accordance with its nature and destination. In addition, he must pay the necessary expenses for the maintenance and conservation of the property, such as taxes, insurance, ordinary repairs, among others.
  • Rights of the owner: The bare owner is the person who retains ownership of the property while the usufruct is in force. The bare owner has certain rights, such as the right to restitution of the property once the usufruct ends.

Types of usufruct

according to its constitution

According to its constitution, it can be classified into two main types:

  • legal usufruct: Also known as legal usufruct or usufructuary legality, this type of usufruct is established by provision of law. That is, the legislation grants the usufruct to certain persons in certain specific circumstances. A common example of a legal usufruct is the widowed spouse's usufruct of the family home.
  • voluntary usufruct: Also called conventional usufruct or will of the parties, this type of usufruct is established by means of an agreement or contract between the bare owner and the usufructuary. The parties involved agree to the terms and conditions of the usufruct, such as its duration, scope and possible limitations.

According to its duration

According to its duration, it can be classified into several types:

  • Life: It is the most common and long-lasting. The usufructuary has the right to enjoy and use the property throughout its life. The usufruct is extinguished automatically with the death of the usufructuary.
  • Temporary: Has a specific duration established in the contract or agreement. It may be for a set period of time, such as 10 years, or it may be subject to a specific condition, such as until a certain age is reached. Once the term is reached or the condition is satisfied, the usufruct is extinguished.
  • For fixed term: It is similar to, but it is established for a fixed term without being subject to specific conditions. At the end of the fixed period, the usufruct is extinguished.
  • For conditional period: In this type, the duration is conditioned to the occurrence of a specific event. For example, the usufruct can be established until the beneficial owner gets married, finishes his studies or retires.
  • lifetime with charges: In some cases, the lifetime usufruct may be subject to additional charges or conditions imposed by the bare owner. These charges may include the obligation of the beneficial owner to make certain payments or maintain the property in good condition. If the beneficial owner fails to meet these charges, the beneficial owner may be extinguished before the beneficial owner's death.

"Acts inter vivos", "Mortis Causa" and "usufruct by usucapion"

The terms "inter vivos acts","mortis causa" Y "usufruct by usucapion» refer to different forms or moments in which rights over a usufruct can be established or acquired. Each of them is explained below:

  • Acts inter vivos: The "inter vivos acts» refer to those legal acts that are carried out between living people. In the context of the usufruct, this implies that the usufruct is established during the life of the bare owner. That is, when both the owner node and the usufructuary are alive. Inter vivos acts to establish a usufruct could include contracts, gifts, succession agreements, or other legal agreements.
  • mortis causa: The term "mortis causa» refers to acts or legal provisions that take effect after the death of a person. In the context of usufruct, this implies that the usufruct is established or transferred as a result of the death of the original owner (bare owner). This usually occurs through a will or statutory probate provisions.
  • Usufruct by usucapion: The usucapion is a legal concept that allows the acquisition of ownership of an asset through continuous and peaceful possession during a determined period of time, complying with the established legal requirements. In some cases, it can also be applied to the acquisition of a usufruct. The usufruct by usucapion refers to the situation in which a person acquires the right of usufruct over an asset due to its uninterrupted and peaceful possession during the time required by law.

Reasons for which the usufruct right is extinguished

The right of usufruct can be extinguished for various reasons, some of which include:

  • Death of the usufructuary: In the case of life usufruct, the usufruct right is automatically extinguished with the death of the usufructuary. At that time, the asset returns to the bare owner or passes to other designated beneficiaries.
  • Compliance with the term or condition: If the usufruct was established for a certain period of time or subject to a specific condition, once the term is met or the condition is satisfied, the usufruct right comes to an end.
  • Waiver of the beneficial owner: The usufructuary can voluntarily renounce his right to usufruct, through a formal legal act of resignation. In this case, the owner knot regains full control and enjoyment of the property.
  • Property Consolidation: If the same individual becomes the owner of the property and the usufruct over the same property, the consolidation of the property occurs and the usufruct is extinguished.
  • Loss or destruction of property: If the object of the usufruct is lost or permanently destroyed, the right of usufruct is automatically extinguished, since there is no other object on which to exercise the usufruct.
  • expropriation of property: If the asset is expropriated for public utility or other legal reasons, the usufruct may be extinguished or compensated as established by applicable law.
  • Breach of obligations: If the usufructuary fails to comply with the obligations established in the usufruct contract or in the law, the bare owner may request the extinction of the usufruct and recover the full disposition of the property.

Limitations of the extinction event

In addition, there are a series of limitations on this event of extinction:

  • If the resignation is made in fraud of creditors, the rescission may be requested.
  • If the usufruct is mortgaged, the mortgage is not extinguished until the payment is made.
  • For the total loss of the object of the usufruct. The total loss of the usufruct supposes not being able to dispose of the faculties of use and enjoyment. If the thing is lost only in part, the right of usufruct will continue in the remaining part.
  • For ceasing in his right who constituted it. That is, if the person who established the usufruct loses his right to the thing in usufruct.
  • By extinctive prescription. It is governed by the general rules of extinctive prescription. That is, within 6 years for personal property. For real estate, a term of 30 years is set.
  • By forced expropriation. Compulsory eminent domain results in loss of property. When losing the property and therefore the faculties of use and enjoyment, the usufruct is extinguished.

Rights and obligations of the parties

In the usufruct, the parties involved have different rights and obligations. The rights and obligations of each of the parties are detailed below:

Rights of the usufructuary

  • right of enjoyment: The usufructuary has the right to enjoy and use the property subject to the usufruct in accordance with its nature and destination.
  • Right of perception of fruits: The usufructuary has the right to receive the fruits, yields or benefits generated by the property during the period of usufruct. This includes the right to receive rental income from a property, harvest produce from a farm, or enjoy stock dividends.
  • conservation right: The usufructuary has the right and obligation to keep the property in good condition and make the necessary repairs for its regular maintenance.
  • Right to necessary improvements: The usufructuary has the right to make necessary improvements to the property, as long as they do not harm the rights of the bare owner and are reverted at the end of the usufruct.
  • Right to assign or lease: In some cases, the usufructuary has the right to assign or lease his usufruct right to third parties, as long as it does not exceed the legal limits and does not harm the rights of the bare owner.

Obligations of the usufructuary

  • Conservation obligation: The usufructuary has the obligation to keep the property in good condition and use it in accordance with its nature and destination. He must carry out the necessary ordinary repairs and assume the costs of maintenance and upkeep.
  • Obligation to pay charges and expenses: The usufructuary has the obligation to assume the ordinary and necessary expenses related to the property, such as taxes, insurance, and other maintenance and conservation expenses.
  • Prohibition of disposing of the property: The usufructuary cannot sell, transfer or encumber the asset subject to the usufruct, since he only has the right of use and enjoyment, but not ownership.

Rights of the owner

  • Right to property: The bare owner retains the right of ownership over the property, although he cannot enjoy or use it while the usufruct lasts.
  • Right to receive the asset at the end of the usufruct: Once the usufruct is extinguished, the bare owner recovers full disposition and control of the property.

Obligations of the owner

  • Obligation to respect the usufruct: The bare owner has the obligation to respect the rights of the usufructuary and allow him the use and enjoyment of the property during the period of usufruct.
  • Obligation to maintain property: The owner node must maintain the property in adequate conditions and carry out the necessary structural repairs for its conservation.

Value of the usufruct

The value can be calculated in situations such as the sale of the property or to determine the Inheritance tax and donations. In the case of temporary usufruct, its value is calculated by applying 2% of the value of the asset for each year that elapses, with a minimum of 10% and a maximum of 70% of the total value. In the case of life, a maximum limit is established based on the age of the usufructuary.