The concept of ‘usufruct’ explained

Legal Matters with Arthur Marara

A usufruct is a legal right given by a property owner to someone else to use his or her asset for a limited time – usually a fixed term or a person’s lifetime.

While a usufruct allows extensive rights over the property, it does not transfer the ownership of the asset itself to the usufructuary.

It even extends to the accessories of the asset that is subject thereto.

A usufruct over a farm, for example will normally extend not only to all the buildings but presumably also to the livestock, farming equipment and the furniture in the homestead, provided a contrary intention does not appear from the will or agreement inter vivos, as the case maybe.

The usufructuary is only entitled to the use and enjoyment of the property; he or she does not acquire ownership, though he or she is, of course, entitled to its possession.

A usufruct may be constituted over a collection of things such as a herd of cattle, flock of sheep or even the entire estate of the grantor.

The law recognises that a usufructuary has rights but also obligations with regard to the property.

The usufructuary has no entitlement to consume and destroy the thing (isu abutendi) and is obliged to preserve its substance.

He or she should ensure that the property is not damaged or altered in any way and at the end of the stipulated period, the usufructuary must hand the property back to the rightful owner or heirs. The obligation to preserve the substance of the property means the usufructuary is bound to maintain it.

As the usufructuary is not the owner of the property, he or she cannot alienate or encumber it.

The usufruct should be used for its intended purposes, and the usufructuary is legally bound to act as a diligent individual, who may not misuse the property.

The usufructuary is also responsible for paying the property rates and general day-to-day costs of maintaining it.

You need to apply your mind to the other side of usufructs in the event that you want to create them in a will.

It is often forgotten that a usufruct places a significant financial burden on the heirs of the property. The testator/testatrix makes the necessary financial provision for the maintenance of the property subject to the usufruct to avoid unnecessarily burdening the heirs with the various costs involved. The law on usufruct can be summarised as follows:

1. A usufruct is a limited real right.
2. The usufructuary has the right to use and enjoy the property while the remainderperson (usually referred to as remainderman in older cases and texts) has the bare dominium.
3. The usufructuary has the right to use and enjoy the property but not to destroy it.
4. The usufructuary is a bona fide possessor and is entitled to the fruits but the corpus must be handed back at the termination of the usufruct.
5. The remainderperson has a right to demand an inventory at any time.
6. The remainderperson can demand security.

See the judgement of the High Court in Zvinavashe v Zvinavashe (HH 437 of 2019, HC 573 of 2019) [2019] ZWHHC 437 for further elaboration of the point.

A usufruct comes into existence by means of a legal contract during the lifetime of the owner of the asset, or in terms of a Last Will and Testament. You can also create a usufruct through a Trust Deed. The terms of the usufruct must be clearly spelt out.

 

◆ Arthur Marara is a corporate law attorney practising law in Harare. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]