Usufruct

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Usufruct ( /ˈjzjfrʌkt/ ) [1] is a limited real right (or in rem right) found in civil-law and mixed jurisdictions that unites the two property interests of usus and fructus:

Contents

A usufruct is either granted in severalty or held in common ownership, as long as the property is not damaged or destroyed. The third civilian property interest is abusus (literally abuse), the right to alienate the thing possessed, either by consuming or destroying it (e.g., for profit), or by transferring it to someone else (e.g., sale, exchange, gift). Someone enjoying all three rights has full ownership.

Generally, a usufruct is a system in which a person or group of persons uses the real property (often land) of another. The "usufructuary" does not own the property, but does have an interest in it, which is sanctioned or contractually allowed by the owner. Two different systems of usufruct exist: perfect and imperfect. In a perfect usufruct, the usufructuary is entitled the use of the property but cannot substantially change it. For example, an owner of a small business may become ill and grant the right of usufruct to an individual to run their business. The usufructuary thus has the right to operate the business and gain income from it, but does not have the right to, for example, tear down the business and replace it, or to sell it. [2] The imperfect usufruct system gives the usufructuary some ability to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agricultural use, the usufructuary may have the right to not only grow crops on the land but also make improvements that would help in farming, say by building a barn. However this can be disadvantageous to the usufructuary: if a usufructuary makes material improvements - such as a building, or fixtures attached to the building, or other fixed structures - to their usufruct, they do not own the improvements, and any money spent on those improvements would belong to the original owner at the end of the usufruct. [3] [4] [ additional citation(s) needed ]

In many usufructuary property systems, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal ownership. [5] A usufruct is directly equatable to a common-law life estate except that a usufruct can be granted for a term shorter than the holder's lifetime (cestui que vie).

History

Usufruct comes from civil law, under which it is a subordinate real right (ius in re aliena) of limited duration, usually for a person's lifetime. The holder of a usufruct, known as a usufructuary, has the right to use (usus) the property and enjoy its fruits (fructus). In modern terms, fructus more or less corresponds to the profit one may make, as when selling the "fruits" (in both literal and figurative senses) of the land or leasing a house.

Fruits refers to any renewable commodity on the property, including (among others) actual fruits, livestock and even rental payments derived from the property. These may be divided into civil (fructus civiles), industrial (fructus industriales), and natural fruits (fructus naturales), the latter of which, in Roman law, included slaves and livestock.

Under Roman law, usufruct was a type of personal servitude (servitutes personarum), a beneficial right in another's property. The usufructuary never had possession of this property (on the basis that if he possessed at all, he did so through the owner), but he did have an interest in the property itself for a period, either a term of years, or a lifetime. Unlike the owner, the usufructuary did not have a right of alienation (abusus), but he could sell or lease his usufructuary interest. Even though a usufructuary did not have possessory title, he could sue for relief in the form of a modified possessory interdict (prohibiting order).

In some indigenous cultures, usufruct means the land is owned in common by the people, but families and individuals have the right to use certain plots of land. Land is considered village or communal land rather than owned by individual people. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community.

Ancient examples of usufruct are found in the Code of Hammurabi and the Law of Moses. The Law of Moses directed property owners not to harvest the edges of their fields, and reserved the gleanings for the poor. [6]

Thomas Jefferson famously wrote in 1789 that "Earth belongs in usufruct to the living." Jefferson's metaphor means that, like a usufructuary, human beings have the right to use the earth for their own benefit and derive profit from it. Jefferson's use of the word "living" is critical here: he meant that the usufructuaries of the world are those who are alive, not deceased past generations. This idea would profoundly influence Jefferson over the course of his life, and would lead to his acknowledgement that the Constitution of the United States would be revised by future generations, and was part of the reason that the Constitution includes a provision for its own amendment. [7]

Local variations

France

In France usufruct applies in inheritances. Under French law an indefeasible portion known as the forced estate passes to the deceased's surviving spouse and issue (with shares apportioned according to the number of children), with the rest of the estate – the free estate – free to dispose of by will. However, the surviving spouse may elect to distribute the forced estate as is, or convert it into a usufruct, or break up the estate into a distributable portion and a usufruct good for the children's lifetime. If a usufruct is chosen, a value is set for the usufruct interest for inheritance tax purposes and payable by the surviving spouse, on a sliding scale according to his/her age.

The value of furniture and household items is calculated using a standard formula based on the appraised value of the estate's liquid and non-liquid assets, then the usufruct's value to the surviving spouse is subtracted, and finally the remaining balance is divided among the children on the death of the surviving spouse. This simplifies handling household items since the surviving spouse is free to maintain, replace or dispose of them as he/she wishes during his/her lifetime, with the monetary value of the items going to the children. Title to assets does not pass, and the usufruct disappears on death or at the end of a term of years. A usufruct is distinct from a trust or similar settlement. French law breaks with Roman law by construing a usufruct as not a servitude but rather a possessory interest.

United States

Louisiana

Although the United States is for the most part a common law jurisdiction recognizing life estate instead of usufruct, Louisiana is a civil-law jurisdiction, specifically following the French and Spanish models. In Louisiana, usufructs generally are created in a manner similar to other real rights, by gift ("donation"), will ("testament"), or operation of law. Nevertheless, they are typically granted cestui que vie. Unless otherwise provided in a will, a person's share of community property accedes to descendants as bare title holders ("naked owners"); nevertheless, if that person has a living spouse, the latter will receive a usufruct in that portion of the estate until death or remarriage (La. Civil Code art. 890). Under certain other conditions, a usufruct may arise giving rights to that person's parents. [8]

Georgia

While Georgia does not share Louisiana's civil law history, Georgia General Assembly statutorily created usufructs. [9] In Georgia, a usufruct is "rights or privileges usually arising out of landlord and tenant relationships, and with privileges granted to tenants holding less interest in real estate than estate for years". [10] Under Georgia law, if a landowner grants a lease for fewer than five years, the lease agreement is a usufruct, and the landowner retains the estate. [11] Additionally, Georgia courts consider as a usufruct any relationship between a landowner and a lessee where the restrictions are "so pervasive as to be fundamentally inconsistent with the concept of an estate for years", or the landowner retains "dominion and control" over the business operating on the property. [12]

Philippines

Philippine law relating to usufruct is set forth primarily in Title VI of the Philippine Civil Code. [13]

Thailand

In Thailand the Commercial and Civil Code is based on the European civil code and recognizes the notion of usufruct at clauses 1417 to 1428. The usufruct can be done for lifetime or a maximum of 30 years according to the law. It needs to be registered at the local land department to have full effect on third parties, on title deed Nor Sor Sam or higher. The land department in Thailand will use their own forms and contracts. However, parties can make their own agreements. A usufruct contract in Thai and English is available here, payment of fee required for download.

Scotland

A liferent, by which a usufruct is known in Scots law, is the right to receive for life the benefits of a property or other asset, without the right to dispose of the property or asset. An individual who enjoys this right is called a liferenter. The owner of a property burdened by a usufruct is called the fiar and right of ownership is known as the fee.

Cuba

Usufruct has been revived as part of the agricultural change associated with Cuba's Special Period. As a legacy of sanctions and a struggling economy, Cuba had accumulated many crumbling buildings that could not be repaired. These were torn down and the empty lots lay idle for years until the food shortages forced Cuban citizens to make use of every piece of land. Initially, this was an ad-hoc process where ordinary Cubans took the initiative to grow their own food in whatever piece of land was available. Tenure but not ownership was formalised with a legal framework using usufruct to give farmers rights on a profit-sharing basis to the products produced from the land, but not ownership rights to the land itself. [14] [15]

See also

Related Research Articles

Property in the abstract is what belongs to or with something, whether as an attribute or as a component of said thing. In the context of this article, it is one or more components, whether physical or incorporeal, of a person's estate; or so belonging to, as in being owned by, a person or jointly a group of people or a legal entity like a corporation or even a society. Depending on the nature of the property, an owner of property has the right to consume, alter, share, redefine, rent, mortgage, pawn, sell, exchange, transfer, give away or destroy it, or to exclude others from doing these things, as well as to perhaps abandon it; whereas regardless of the nature of the property, the owner thereof has the right to properly use it, or at the very least exclusively keep it.

Ownership is the state or fact of exclusive rights and control over property, which may be any asset, including an object, land or real estate, intellectual property, or until the nineteenth century, human beings. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties.

The rule against perpetuities is a legal rule in the Anglo-American common law that prevents people from using legal instruments to exert control over the ownership of private property for a time long beyond the lives of people living at the time the instrument was written. Specifically, the rule forbids a person from creating future interests in property that would vest beyond 21 years after the lifetimes of those living at the time of creation of the interest. In essence, the rule prevents a person from putting qualifications and criteria in a deed or a will that would continue to affect the ownership of property long after he or she has died, a concept often referred to as control by the "dead hand" or "mortmain".

In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" refers to a sub-category of such interests that features an absence of any temporal condition limiting its durational period under common law, whereas the highest possible form of ownership interest that can be held in real property is a "fee simple absolute," which is a sub-set characterized by an absence of limitations regarding the land's use. Allodial title is reserved to governments under a civil law structure. The rights of the fee-simple owner are limited by government powers of taxation, compulsory purchase, police power, and escheat, and may also be limited further by certain encumbrances or conditions in the deed, such as, for example, a condition that required the land to be used as a public park, with a reversion interest in the grantor if the condition fails; this is a fee simple conditional.

In common law and statutory law, a life estate is the ownership of land for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".

An estate in land is an interest in real property that is or may become possessory. It is a type of personal property and encompasses land ownership, rental, and other arrangements that give people the right to use land. This is distinct from sovereignty over the land, which includes the right to government and taxation.

The bundle of rights is a metaphor to explain the complexities of property ownership. Law school professors of introductory property law courses frequently use this conceptualization to describe "full" property ownership as a partition of various entitlements of different stakeholders.

In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminology for co-owners of real estate is either co-tenants or joint tenants, with the latter phrase signifying a right of survivorship. Most common law jurisdictions recognize tenancies in common and joint tenancies.

<i lang="xno" title="Anglo-Norman language text">Cestui que</i> concept in English law, of feudal origin

Cestui que is a shortened version of cestui a que use le feoffment fuit fait, literally, "The person for whose benefit the feoffment was made." It is a Law French phrase of medieval English invention, which appears in the legal phrases cestui que trust, cestui que use, or cestui que vie. In contemporary English the phrase is also commonly pronounced "setty-kay" or "sesty-kay". According to Roebuck, Cestui que use is pronounced "setticky yuce". Cestui que use and cestui que trust are more or less interchangeable terms. In some medieval materials, the phrase is seen as cestui a que.

A servitude is a qualified beneficial interest severed or fragmented from the ownership of an inferior property and attached to a superior property or to some person other than the owner. At civil law, ownership (dominium) is the only full real right whereas a servitude is a subordinate real right on par with wayleaves, real burdens, security interests, and reservations. There are two types: predial, attaching to property, and personal, attaching to a person.

In property law and real estate, a future interest is a legal right to property ownership that does not include the right to present possession or enjoyment of the property. Future interests are created on the formation of a defeasible estate; that is, an estate with a condition or event triggering transfer of possessory ownership. A common example is the landlord-tenant relationship. The landlord may own a house, but has no general right to enter it while it is being rented. The conditions triggering the transfer of possession, first to the tenant then back to the landlord, are usually detailed in a lease.

Forced heirship

Forced heirship is a form of testate partible inheritance whereby the estate of a deceased is separated into (1) an indefeasible portion, the forced estate, passing to the deceased's next-of-kin (conjunctissimi), and (2) a discretionary portion, or free estate, to be freely disposed of by will. Forced heirship is generally a feature of civil-law legal systems which do not recognize total freedom of testation. Normally, the deceased's estate is in-gathered and wound up without discharging liabilities, which means accepting inheritance includes accepting the liabilities attached to inherited property. The forced estate is divided into shares which include the share of issue and the spousal share. This provides a minimum protection that cannot be defeated by will. The free estate, on the other hand, is at the discretion of a testator to be distributed by will on death to whomever he or she chooses. Takers in the forced estate are known as forced heirs.

Dominium directum et utile is a legal Latin term used to refer to the two separate estates in land that a fief was split into under feudal land tenure. This system is more commonly known as duplex dominium or double domain. This can be contrasted with the modern allodial system, in which ownership is full and not divided into separate estates—a situation known as dominium plenum "full ownership".

In legal usage, Possessory forms several compounds.

Ius in re, or jus in re, under civil law, more commonly referred to as a real right or right in rem, is a right in property, known as an interest under common law. A real right vests in a person with respect to property, inherent in his relation to it, and is good against the world. The primary real right is ownership (dominium). Whether possession (possessio) is recognized as a real right, or merely as a source of certain powers and actions, depends on the legal system at hand. Subordinate or limited real rights generally refer to encumbrances, rights of use and security interests. The term right in rem is derived from the action given to its holder, an actio in rem. In Latin grammar the action against the thing demands a fourth case. The underlying right itself, Ius in re, has a fifth case, as the right rests on, or burdens, the thing. By mistake the common law terminology now uses the fourth case for describing the right itself. Compare jus ad rem.

South African property law

South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law. Among the formal functions of South African property law is the harmonisation of individual interests in property,the guarantee and protection of individual rights with respect to property, and the control of proprietary relationships between persons, as well as their rights and obligations. The protective clause for property rights in the Constitution of South Africa stipulates those proprietary relationships which qualify for constitutional protection. The most important social function of property law in South Africa is to manage the competing interests of those who acquire property rights and interests. In recent times, restrictions on the use of and trade in private property have been on the rise.

Chinese property law has existed in various forms for centuries. After the Chinese Communist Revolution in 1949, most land is owned by collectivities or by the state; the Property Law of the People's Republic of China passed in 2007 codified property rights.

The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.

Real property Legal term; property consisting of land and the buildings on it

In English common law, real property, real estate, realty, or immovable property is land which is the property of some person and all structures integrated with or affixed to the land, including crops, buildings, machinery, wells, dams, ponds, mines, canals, and roads, among other things. The term is historic, arising from the now-discontinued form of action, which distinguished between real property disputes and personal property disputes. Personal property was, and continues to be, all property that is not real property.

Souvenir Plots (Scotland)

See also, laird and False titles of nobility

References

  1. "usufruct". Oxford English Dictionary second edition. Oxford University Press. 1989. Retrieved 19 December 2018.
  2. Staff, Investopedia (2003-11-24). "Usufruct". Investopedia. Retrieved 2018-08-03.
  3. "Property Matters: The Ins and Outs Of a Usufruct - Property24.com". www.property24.com. Retrieved 2018-08-03.
  4. "Usufruct | law". Encyclopedia Britannica. Retrieved 2018-08-03.
  5. OECD (2003-11-04). OECD Environmental Performance Reviews: Mexico 2003. OECD Publishing. ISBN   978-92-64-10501-0.
  6. Leviticus 19:9-10, 23:22.
  7. "The Earth Belongs in Usufruct to the Living | The Papers of Thomas Jefferson". jeffersonpapers.princeton.edu. Retrieved 2018-08-03.
  8. La. C.C. art. 891.
  9. Ga. L. 1876, p. 35, § 1.
  10. Roe v. Doe, 246 Ga. 138, 140, 268 S.E.2d 901, 904 (1980) (quoting Martin v. Heard, 239 Ga. 816, 818 – 19, 238 S.E.2d 899, 901 (1977)).
  11. O.C.G.A. § 44-7-1
  12. Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8, 14, 598 S.E.2d 791, 796 (2004) (quoting Camp v. Delta Air Lines, 232 Ga. 37, 40, 205 S.E.2d 194 (1974); Allright Parking of Georgia v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 387, 260 S.E.2d 315 (1979); Buoy v. Chatham County Bd. of Tax Assessors, 142 Ga. App. 172, 173, 235 S.E.2d 556 (1977)).
  13. Book II, Property, Ownership, and its Modifications, Republic Act No. 386, The Civil Code of the Philippines (June 18, 1949), Chan Robles Law Library.
  14. Clifford L. Staten (2005). The History of Cuba. Palgrave Macmillan. p.  129. ISBN   978-1-4039-6259-1.
  15. Audrey C. Fusco (2008). Local Food, Sustainability, and Cuba's National Food Program. p.  96. ISBN   978-1-109-07009-5.