Usufruct, usus and habitatio: Unintended Consequences!
Usufruct, usus and habitatio are personal servitudes, which are sometimes used as estate planning tools to reduce estate duty, but testators don’t always realise what this entails and the burden it could place on the heirs. What is a personal servitude? A personal servitude gives a right to an individual to use and enjoy another person’s property. This servitude is enforceable against the owner of the property but cannot be transferred by the beneficiary thereof. In other words, a servitude can be granted for a fixed term or until the occurrence of a future event, but not beyond the death of the beneficiary.
Testators will sometimes bequeath their fixed property to all their children but with a personal servitude in favour of only one child or to the surviving spouse. This may have unintended consequences as the ownership of the property have little value in comparison to the value of the personal servitude and ownership almost becomes irrelevant when the servitude is granted for the lifetime of the beneficiary as the owner of the property is very limited in his rights to the property as is evident from the facts below.
A usufruct is a right that entitles a person to have the use, enjoyment and fruit of and over another person’s property. The usufructuary does not acquire ownership of the property. The usufructuary may take, consume and alienate the fruits. This means that the usufructuary is entitled to all the products of the land and all profits and revenues derived from the property. The young of animals as well as all products derived from the animals, including milk, wool or eggs become the property of the usufructuary.
The usufructuary is bound to maintain the property and to defray the costs of all current repairs necessary to keep it in good order and condition, fair wear and tear excepted. He is also responsible for paying all rates and taxes but if the usufructuary makes improvements to the property he is not entitled to compensation, though the improvements made can be removed, provided the usufructuary makes good any damage that their removal may cause.
A usufructuary may not alienate or encumber the property, but he may dispose of the right to the use and enjoyment of the property and its fruits whether by sale, lease or loan, provided that such arrangement does not exceed the period for which the usufruct has been granted.
The owner may not do anything to prejudice the usufructuary’s rights. The owner may not prevent, hinder or diminish the right of use or enjoyment. Any further actions by the owner regarding the property, for instance the sale of the property and the registration of a mortgage bond, require the consent of the usufructuary. The owner together with the usufructuary may mortgage the property, or the usufructuary can abandon his preference so that the mortgage is registered free from the usufruct.
A servitude of use or usus resembles a usufruct but the holder’s rights are far more restricted. Immovable property may be occupied by the holder of the usus and the fruits may be taken for daily needs but the holder may not sell any fruit, nor may he grant a lease of the property.
The servitude of habitatio confers on its holder the right to dwell in the house of another, together with his family. The holder may grant a lease or sublease to others.