Whether planning your estate, or accommodating your parents or children; usufruct is a useful tool for giving someone possession without having to give them ownership.
Usufruct, lyftocht, is the right to use and enjoy the property of another person and to take the fruits thereof, subject to the substance of the property being preserved.
Usufruct is almost invariably granted for the life of the usufructuary (the person to whom the usufruct is granted), hence called lyftocht, since in most cases it is constituted in terms of a will for the lifetime of the beneficiary. A usufruct cannot be constituted so as to take effect beyond the lifetime of the person in whose favour it is created. It may, however, be constituted for a shorter period; for example, for a fixed number of years, or until a certain event happens, for instance, until the usufructuary remarries.
Usufruct may be constituted over immovables, and also movables which are not consumable through use.
Usufruct is constituted by delivery or prescription. In the case of immovable property delivery means registration, in pursuance of some valid reason, such as a disposition in a will, or a contract, or an order of court. A usufruct may be registered against land by the registration of a notarial deed, creating the usufruct, executed by the owner of the land and by the grantee; in the case of a transfer of land, a usufruct may be reserved in favour of the transferor. However, no usufruct may be registered which purports to extend beyond the lifetime of the grantee.
In the case of acquisitive prescription (acquiring something through possessing it for a period of time) the possessor of the land subject to a usufruct acquires the rights of the usufructuary only, and not the ownership of the land. Since the owner is not entitled to the possession of the land he consequently cannot be prejudiced by the fact that a third person is in possession of the land.
Usufruct rights are many and varied, most dating back to early Roman law.
The usufructuary is first of all entitled to the possession of the property. Joint usufructuaries are entitled to a partition of the property to the extent of their life interest.
The usufructuary is entitled to and may take the fruits of the property. He acquires the ownership in the natural and industrial fruits only when they are separated from the property; but civil fruits, such as rent and interest due in respect of the property, vest in the usufructuary without collection by, or payment to, him.
The usufructuary of a flock of sheep or herd of cattle is entitled to keep, in addition to the wool or milk, the progeny over and above the full complement of the flock or herd. This number must be maintained, the young replacing the old as they die, and the flock or herd as an entity must be returned at the termination of the usufruct to the remainderman.
A regards trees growing on the land, the usufructuary may cut silva caedua, or timber; that is trees which when cut sprout up again from the stem and produce fresh crops of wood, such as the gum tree but he may not cut ornamental trees or fruit trees.
A usufructuary has no right to take the substance of the property, and consequently he may not take and keep money, but he may keep only the interest on the sum realized and he must restore the capital on the termination of the usufruct.
Since a usufruct is strictly personal the usufructuary may not alienate the usufruct itself, that is, he cannot transfer the usufruct to another person so as to give the transferee the usufruct for his, the transferee’s lifetime. A transfer or cession of a usufruct to any person other than the owner of the land may not be registered, but the owner of the land and the usufructuary together may transfer land to a third person, or together they may mortgagee the land to the extent of their respective rights.
The usufructuary, however, may alienate his rights; he may, for example transfer the possession of the land for his lifetime; or he may let the property for the period of his usufruct but not beyond it; or he may mortgage or pledge his usufructuary interest to the same extent.
If judgement is obtained against the usufructuary, the usufruct may be sold in execution of the judgement. Upon the insolvency of the usufructuary his interest passes to his trustee, whose duty it is to sell the same, and the purchaser becomes entitled to the possession and enjoyment of the property.
The usufructuary must, at the demand of the owner of the property, form an inventory of the property included in the usufruct. He must also give the owner security for the restoration of the property at the termination of the usufruct in the same condition as it was when received, bona fide wear excepted.
It is worth remembering that security need not be given where: parents alienate their property subject to a usufruct in their favour to their children by last will or by an act inter vivos; an owner alienates his property but simultaneously reserves a usufruct in favour of himself; a usufruct is agreed upon inter vivos and the usufructuary is freed from the obligation to give security.
The usufructuary must use the property with the highest possible degree of care, and, since he is obliged to keep the property in the same good condition in which he received it, must make the necessary repairs to buildings and must maintain the cultivation of fields and gardens. He must also pay taxes and rent due on the property, but not a mortgage debt or interest; nor need he maintain an existing insurance policy upon a house. A usufructuary is not entitled to compensation for any improvements he has made to the property, though he may, prior to the termination of his interest, remove any structures which he has erected, provided that he does no injury to the property.
The usufructuary must restore the property salva rei substantia, that is, with preservation of its substance. He is therefore not allowed to destroy or consume the property, impair its value or change its character.
There are several ways in which usufruct is terminated.
Usufruct is terminated by the death of the usufructuary. In the case of co-usufructuaries, upon the death of one of them, the jus accrescendi comes into operation; his share accrues to the remaining usufructuaries. Where the usufructuary is a corporation the usufruct terminates upon the lapse of one hundred years, unless the corporation is dissolved earlier.
Usufruct is also terminated by the arrival of the day, or fulfilment of the condition, pending which the usufruct was established. Destruction of the usufructuary property, merger of the titles of the usufructuary and owner, surrender of the usufruct by the usufructuary to the owner of the property and non-use of the property for the period of prescription, namely thirty years, will also terminate usufruct.
– Written by Thys Seyffert (thys@chrisfick.co.za)
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.