A reader approached our property experts about the way a usufruct operates, especially concerning the rights and obligations of the person using the property.
See the reader’s question here.
A usufruct is a type of servitude granted in favour of a third party known as the ‘usufructuary’.
This servitude permits the holder to use the property and also may prescribe certain obligations.
Section 65 of the Deeds Registries Act provides for the registration of a personal servitude.
A personal servitude can be created by means of a deed. This is executed by the owner of the land along with the person in whose favour it is created and attested by a notary public.
Such usufruct is personal to the holder and cannot be transferred.
It grants the holder certain rights of use and is often granted to a surviving spouse in the will of the deceased spouse.
The widow or widower then has the right to continue living in the fixed property, but this is often subject to another person, often a descendant of the deceased, inheriting the property.
Of course, a usufruct over a certain property can be granted while the owner is still alive, enabling the usufructuary to use the property and its possible products.
The holder is obliged to furnish security to ensure the property can be restored to its former condition, unless otherwise agreed.
The holder of the usufruct is obliged to maintain the property to be able to return it to the owner in good condition at the termination of the servitude.
This is much the same as in the instances of a lease agreement where fair wear and tear is accepted.
The obligation also extends to the payment of rates levied against the property during the currency of the usufruct, unless a contrary position is established.
Both the owner and usufructuary have certain rights of enforcement available, which include claims for damages, prohibitory or mandatory interdicts and declaration of rights.
A usufruct terminates on the death of the usufructuary or where it was granted for a limited time.
Section 68 of the Act provides for the lapsing of a servitude and proof thereof must be provided to the registrar.
The reader should consider approaching an attorney for comprehensive advice and provide him with the full scenario to assess what actions to take.
Ask the YourProperty experts a question here.