USUFRUCT

Subject

A usufruct right can be established over movable or immovable property, rights, or an asset. Unless otherwise stipulated, this right grants the holder full power to enjoy the subject matter.

 Establishment

A usufruct right is established by the transfer of possession of movable property, the assignment of claims for receivables, and registration in the land registry for immovable property.

Unless otherwise stipulated, the provisions relating to ownership shall apply to the acquisition and registration of usufruct rights in movable and immovable property.

A legal usufruct right over immovable property can be asserted against those who are aware of the situation, even if it is not registered in the land registry. If it is registered, it can be asserted against everyone.

 Reasons for termination

A usufruct right terminates upon the complete destruction of its subject matter and the cancellation of its registration in the case of immovable property; a statutory usufruct right terminates upon the disappearance of the reason for its existence.

The expiration of the term, or other reasons for termination such as the holder's relinquishment or death, grants the owner the right to request the cancellation of ownership of immovable property.

 Duration

 A usufruct right terminates in the case of natural persons upon the death of the right holder; in the case of legal entities, it terminates upon the expiration of the agreed period, or if no period is agreed upon, upon the dissolution of the legal entity. The usufruct right of legal entities may last for a maximum of one hundred years.

Destruction or expropriation

 The owner is not obligated to restore the usufructuary property, which has been damaged to the point of being unusable, to a usable condition; if they do, the usufruct right is re-established. In cases such as insurance and expropriation, the usufruct right continues on the consideration that replaces the subject matter of the right.

 Give back:

Obligation

When a usufruct right expires, the right holder is obligated to return the property that was the subject of the right to the owner.

 Responsibility

The usufructuary is liable for the destruction or decrease in value of the property unless they prove that the damage did not result from their own fault. The usufructuary is also obligated to compensate for anything consumed that was not necessary for their use. The usufructuary is not liable for decreases in value resulting from the ordinary use of the property.

 Expenses

 The usufructuary may, upon termination of the right, claim compensation for expenses, renovations, and additions made without obligation, in accordance with the provisions regarding unauthorized agency. If the owner refuses to pay compensation, the usufructuary may remove the additions, provided they restore the property to its original state.

 Statute of limitations

 All claims that may be asserted by the owner and usufructuary at the time of return are subject to a one-year statute of limitations, starting from that moment.

Rights of the usufructuary

The usufructuary has the right to possess, manage, use, and benefit from the property that is the subject of the right. The usufructuary must exercise due diligence, like a good manager, when exercising these rights.

 Natural products

 Natural products that mature during the usufruct period belong to the usufructuary. The owner or usufructuary who planted or cultivated the crop may request a reasonable price from the other party who harvested the matured product, provided that this price does not exceed the value of the product, to cover the expenses incurred. Integral parts of the property that, by their nature, are not considered part of the natural yield or product belong to the owner.

 Interest rates

Interest and other periodic income from the capital subject to usufruct rights belong to the usufructuary from the date the usufruct right begins until its termination, even if they become due later.

 Transfer of the right to exercise

Unless the contract stipulates otherwise, or the circumstances do not indicate that the usufruct right must be exercised personally by the right holder, it may be transferred to another person. In this case, the owner may assert their rights directly against the transferee.

 Owner's rights

Surveillance

The owner may object to the unlawful or inappropriate use of the property that is the subject of the right.

 Requesting assurance

The owner who proves that their rights are endangered may request security from the usufructuary. If the subject matter of the usufruct right is a consumable item or a negotiable instrument, the owner may request security even before delivery without needing to prove the endangerment. Depositing the negotiable instrument in a secure place serves as security.

 Assurance in donation

In donations where the right of usufruct remains with the donor, no security can be requested from the donor.

 Consequences of lack of guarantees

 If the usufructuary fails to provide security within the reasonable time granted to him, or if he continues to use the property subject to the right unlawfully despite the owner's objection, the magistrate shall, until a new decision is made, remove the usufructuary's possession and entrust the property to a trustee appointed by him.

 Bookkeeping

 The owner or usufructuary may at any time request that the other party have a formal register of the usufructuary property kept by a notary public, in order to share the expenses.

 Obligations of the usufructuary

Property protection

 The usufructuary is obligated to carry out necessary repairs and renovations for the preservation and routine maintenance of the property subject to the usufruct right.

If the preservation of the property requires the performance of more important tasks or the taking of precautions, the usufructuary must inform the owner of the situation and authorize their performance. If the owner refuses to perform the necessary tasks, the usufructuary may perform them on their behalf.

 Maintenance and operating expenses

 The ordinary maintenance and operating expenses of the property subject to usufruct, the interest on the debts it secures, and taxes and duties shall be borne by the usufructuary for the duration of the usufruct.

If the owner has paid the taxes and duties, the usufructuary is obliged to compensate the owner for them according to the principle stated above.

All other obligations belong to the owner. However, if the usufructuary does not provide the owner, upon request, with the money necessary for the fulfillment of these obligations free of charge, the owner may convert the usufructuary property, in whole or in part, into cash to cover these obligations.

 Interest on debts in the use of property

 In the case of usufruct of property, the usufructuary is obligated to pay the interest on the debts associated with that property. However, if circumstances justify it, the usufructuary may request to be relieved of this obligation. In this case, the usufruct right continues only on the portion remaining after the debts have been paid.

 Getting insurance

 According to local customs, if good governance requires it, the usufructuary is obligated to insure the property against fire and other dangers in favor of the owner. In this case, or if the usufruct right is established on insured property, the usufructuary is obligated to pay the insurance premiums for the duration of the usufruct right.

 Special circumstances and situations

Real estate

Products

 A person who holds a usufruct right over real property is obligated to ensure that the use remains within the ordinary limits.

Any products obtained in excess of this limit belong to the owner.

 The aspect of self-sufficiency 

The usufructuary cannot alter the economic purpose of the usufructuary property in a way that would significantly harm the owner; in particular, they cannot transform it into a new form or make any significant changes to it.

The usufructuary may open stone, lime, marble, and peat quarries, and similar facilities, provided they give prior notice to the landowner and do not make any significant changes to the economic purpose of the property.

 Forests

 A person who holds usufruct rights over a forest may utilize it within the framework of a management plan that complies with the provisions of specific laws.

Both the owner and the usufructuary may request that their rights be taken into consideration when the business plan is being drawn up.

If the usual yield is significantly exceeded due to storms, snow, fires, floods, insect infestations, or other reasons, the forest is managed in a way that gradually reduces this loss, or the management plan is adapted to the new situation. The proceeds obtained due to overutilization are invested to generate interest and are used to remedy the yield deficiency.

Things that can be consumed and have a value

Unless otherwise agreed, ownership of consumable items passes to the usufructuary; however, the usufructuary is obligated to pay the current value of these items upon their return.

Unless otherwise agreed, the usufructuary may freely dispose of other movable property delivered to him at its assessed value; however, if he exercises this right, he is obliged to pay the assessed value of these things upon their return. This payment may be made by providing goods of the same kind and quality in the case of agricultural equipment, herds of animals, commercial goods, or similar items.

receivables

Scope of benefit

 A usufruct right over a receivable grants the right to acquire its income. Demands for payment from the debtor and dispositions of negotiable instruments must be made jointly by the creditor and the usufructuary, and any notification by the debtor to pay the debt must be addressed to both of them. If the receivable is jeopardized, either the creditor or the usufructuary may request the other to participate in taking measures necessary for good management.

 Payment and business

 A debtor who is not authorized to pay either the creditor or the usufructuary is obliged to pay the debt to both of them jointly or deposit it in a place determined by the judge. The subject matter of the performance, and especially the principal amount to be repaid, is subject to the usufruct right. The creditor or the usufructuary may request that the principal be deposited in a secure and profit-generating institution.

 Right to request transfer

 The usufructuary may request the transfer of the claim and securities that are the subject of the usufruct right within three months of the commencement of the usufruct. The usufructuary is obligated to pay the transferor the value of the claim and securities at the time of the transfer and, unless waived, is also required to provide security for this debt. If the right to provide security has not been waived, the transfer shall only be effective after the security has been provided.

The Importance of the Lawyer

For a usufruct right to have legal validity and be enforceable in the future, it must be established in accordance with proper procedure

• Title Deed and Contract Procedures: Usufruct rights over immovable properties must be registered in the land registry with an official deed. Incorrectly or incompletely prepared contracts may render the right invalid or prevent it from being enforced against third parties.

• Defining the Terms: Clearly stating details such as the duration of the right (lifetime or for a fixed period?), and who will pay the expenses and taxes, in the contract will prevent future family or partnership disputes.

Legal disputes frequently arise between usufructuaries and bare owners (property holders) or third parties. The main types of cases and legal situations where a lawyer becomes involved are as follows:

• Actions to Prevent Interference (Prohibition of Interference): If the usufructuary is prevented from using the property or if the property is unlawfully occupied by third parties, a lawsuit to stop this interference can be filed through a lawyer.

• Claims for Unlawful Occupation Compensation (Ecrimisil): Calculating and collecting retroactive compensation for unlawful occupation (ecrimisil) when a property is used without the consent of the usufructuary requires expertise.

• Abuse of Rights and Termination Lawsuits: According to the Civil Code, the usufructuary is obligated to protect the property "like a good manager." If the intrinsic value of the property is damaged or the maintenance obligations are not fulfilled, the bare owner has the right to apply to the court through a lawyer to request the termination of the usufruct right.

As a rule, usufruct rights are strictly personal and do not pass to others through inheritance (they automatically terminate upon the death of the holder). Misunderstandings can arise between the parties regarding the timing of this termination, the sharing of income/revenue at the time of termination, or the transfer of the property to the new owner. A lawyer ensures that legal deadlines are not missed and that the rights of the parties are protected within the legal framework.