The rights of a usufructuary and the sale of a property over which a usufruct is registered take centre stage this week.
For the first, the scene is set by a letter from a reader who says she is the owner of a fixed property and that her former husband holds the right of usufruct over it.
He has remarried and she wants to know whether his wife is also permitted to live on the property.
The specific provisions have not been disclosed, but a usufruct generally permits the holder the right of use and enjoyment of the property.
See the reader’s question here.
The right is akin to that of a tenant of a fixed property under an agreement of lease.
The right of use and enjoyment is a comprehensive right and comprises all the positive aspects of the ownership of fixed property, but without the holder actually owning it.
Considering this, it is highly unlikely that there would be any bar to the new wife living with the reader’s ex-husband on the property.
It is possible that the situation in respect of the fixed property arose out of the divorce between the reader and her ex-husband.
It was probably considered at the time to be a sensible solution to the division of the property.
Depending, however, on a number of factors, such as the length of time for which the usufruct applies, the ages of the parties and the like, it would appear that the reader was on the losing end of the deal.
In light of her question, she appears not to have understood the consequences of the registration of the usufruct over the fixed property.
The reader’s second question relates to selling the property to a third party.
It is important to note that the holder of the usufruct may not sell the right of usufruct to a third party as it is a personal servitude.
This means it is linked to the holder of the personal servitude.
In this regard, the Deeds Registries Act states that no personal servitude of usufruct, usus or habitation purporting to extend beyond the lifetime of the person in whose favour it is created, shall be registered.
Nor can a transfer or cession of such personal servitude to any person other than the owner of the land be registered.
Accordingly, for a purchaser to acquire complete ownership of a property with a usufruct, it is necessary for him to acquire both the bare dominium (the land without the right of use and enjoyment attached thereto) and the right of use and enjoyment (as held by the usufructuary).
The act states that if the owner of land subject to a personal servitude and the holder of that servitude have disposed of the land or any portion of it together with the rights of servitude to another person they may together give transfer to the person acquiring it.
The section also says the transfer deed shall describe the transferors as the owner of the land and holder of the servitude respectively, but no mention of the servitude shall be made in the description of the land.
Accordingly, it is clear that the rights, while transferred from two different holders, come together in the hands of the purchaser, who then acquires both the land and the right of use and enjoyment of it.
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