A reader’s mother has sold her house to her step-daughter with an agreement that she retains the right of usufruct over the property.
The mother receives an income from the rental of a flatlet which adjoins the main residence and the reader wants to know if the step-daughter’s husband has a right to view the lease agreement, as requested.
See the reader’s question here.
Presumably, the request was denied as the husband has threatened to approach the High Court to compel her to disclose this agreement.
In the interim, the house has been sold to the step-daughter’s husband, but that sale took place without the consent of her mother.
Although it is not clear whether the first intended sale or the second have proceeded to registration, there are certain observations which can be made.
It is useful to begin by taking note of the nature of a usufruct.
A usufruct is a right held by a person over a fixed property whereby the holder is entitled to the use and enjoyment of that property.
In simple terms, this amounts to the separation of the ownership of the fixed property from its use and enjoyment.
The Deeds Registries Act states that a personal servitude, such as this usufruct, may be reserved by condition in a deed of transfer of land if the reservation is in favour of the transferor.
From the information provided, the rental of the flatlet appears to be a hot topic.
It is not clear why the step-daughter or her husband want to view the content of the lease agreement.
Assuming that the usufruct was registered under the Deeds Registries Act, the mother is entitled to forego her right to the use of the property.
In this instance she is doing so by leasing it to a third party for as long as the usufruct is applicable for her ‘use and enjoyment’.
Further assuming that the usufruct was duly registered, it is unlikely that the transfer of the property to the husband of the step-daughter could have taken place.”
The owner of the fixed property, presumably the step-daughter, may not do anything that may prejudice the rights of the mother as usufructuary.
Should there be any intention to sell the fixed property, register a mortgage bond or something similar, the mother’s consent would be required.
The mother, as the holder of the usufruct, has rights of use and enjoyment akin to those of a tenant.
Accordingly, she is obliged to ensure that the fixed property is maintained, fair wear and tear excepted.
It is possibly for this reason that the step-daughter or her husband wish to obtain a copy of the lease agreement.
They may want to ensure that the rights of the owner of the fixed property are ultimately protected and that the lease agreement makes provision for the tenant to maintain the flatlet which is let.
It should be noted that this is speculative because the mother, as the usufructuary, remains ultimately liable.
A usufruct is typically valid for a stipulated period but no longer than the life of the holder.
The right can therefore not be passed to a third party and is extinguished upon the death of the holder.
The mother should carefully assess her position, ensure that the usufruct was duly registered and refresh her memory as to the provisions of the usufruct.
It should also be established whether or not the transfer and, in particular, the subsequent transfer was effected, even if this is unlikely.
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