A reader writes that his late father bequeathed a residential property to the reader’s sister, subject to a lifelong usufruct in favour of their mother.
The reader explains that the will did not stipulate whether the surviving spouse or the daughter would be responsible for the expenses related to the property.
The mother is currently paying the municipal rates and taxes as well as the separately charged monthly levy on the unit.
The levy, which is charged by the body corporate, is a single lump sum comprising expenses relating to wear and tear, insurance and capital expenditure on improvements to and maintenance of the scheme.
The reader says his sister, who owns the unit, has refused to pay for the property-related expenses and that negotiating with her to resolve this matter has proved fruitless.
See the reader’s question here.
To get to the bottom of the issue, it is important to understand what a usufruct is.
A usufruct is a type of servitude registered in favour of a person who is not the owner but is entitled to use the property for his or her own benefit.
This is fairly commonly used in wills where the testator wants to bequeath a property to an heir but also make provision for another to use the property for an interim period.
The usufructuary, or person who is granted the usufruct, is obliged to return the property to the owner in the same condition as it was received, fair wear and tear excepted.
It is permissible for the usufructuary to make certain improvements to the property but, unless such improvements are special or extraordinary expenses, the usufructuary cannot claim compensation for any payments made.
Similarly, the usufructuary is also obliged to pay any normal expenses, such as rates and taxes, in relation to the property.
This is, however, subject to any contrary agreement that the owner and usufructuary may have concluded between themselves.
In the current instance, it would seem that the mother as the holder of the usufruct is obliged to pay all normal expenses related to the property.
These expenses would most likely include all rates and taxes as well as the monthly levy, which would be considered necessary for the maintenance and upkeep of the property.
However, where any such expenses might be regarded as beyond “normal”, the usufructuary would be entitled to claim such expenditure from the owner.
If the mother is in a position to do so, it would be quite usual for her to pay expenses that are regarded as special or extraordinary and then reclaim them from her daughter, the owner.
If the parties fail to agree, the mother could institute a claim by way of an action for unjustified enrichment.
To avoid further unpleasantness, it would probably make sense for the parties to reach an agreement on the manner in which such expenses are paid and claimed.
If possible, it would also be sensible for them to agree on what might be regarded as normal expenditure and what might constitute special or extraordinary expenses.
Such an agreement could be reduced to writing so as to avoid any future disagreements.
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