Having recently discovered that he owns a usufruct over a property, the holder’s son wants to know how his father can exercise his rights.
We are not advised of the type of property (urban or rural), nor of the circumstances in which the reader’s father became aware of the right.
People – presumably the owners of the bare dominium – have been living on the property since 2001.
The reader’s father feels a rental should be paid should the parties reach an agreement as to the occupiers remaining on the property.
Alternatively he would like to make use of the rights granted to him and enforce his right to use and enjoy the property.
See the reader’s question here.
A usufruct is a personal servitude granted in favour of a person where such person does not gain ownership of the property, but rather the use and enjoyment thereof.
In accordance with the provisions of the Deeds Registries Act, the servitude should be registered against the title deed.
The situation is not without difficulty.
The occupiers have been in occupation for some 15 years and could believe that they have gained some right to and/or over the property.
Accordingly, they could be reluctant to pay any rental or, failing that, vacate the property in favour of the reader’s father.
The mere fact that a servitude is registered over a property permits the holder to enforce his/her right against any third party.
The crux is that the right still has to be enforced.
The first option of agreeing to a rental, whereby the occupiers would become tenants, could be reached by negotiations and a subsequent record of the arrangement by way of a lease agreement.
The occupiers would hopefully see reason in being permitted to remain in residence without disruption.
Failing agreement to conclude a lease, the reader’s father, if he elects to enforce his rights to his use and enjoyment of the property, would require the property to be vacant.
Should the occupiers refuse to vacate the property, eviction of the occupiers would have to be considered.
It is not sufficient to merely approach the court to enforce the provisions of the usufruct as two statutes are applicable.
Eviction would take place by following the procedure prescribed in the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (Pie Act), unless the Extension of Security of Tenure Act (ESTA) applies.
The circumstances of the matter will dictate which statute is applicable.
The procedures have been laid out in these statutes and there is a fair amount of case law clarifying any application thereof.
As eviction is not necessarily quick or inexpensive, the reader’s father should carefully consider whether the aggravation and cost involved in the enforcement process is worthwhile in respect of a property he had no knowledge of for a long time.
That being said, a right exists and can be enforced.
There should be no bar to, at least, making an attempt to secure his rights, which should be successful unless opposing evidence preventing or hindering the enforcement under the two statutes exists.
As always, legal advice given upon an airing of the full facts could provide our reader with useful guidance as to relevant considerations.
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