Usufruct () is a limited
real right (or ''in rem'' right) found in
civil law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'':
* ''Usus'' (''use'', as in usage of or access to) is the right to use or enjoy a thing possessed, directly and without altering it.
* ''
Fructus'' (''fruit'', as in the fruits of production) is the right to derive
profit
Profit may refer to:
Business and law
* Profit (accounting), the difference between the purchase price and the costs of bringing to market
* Profit (economics), normal profit and economic profit
* Profit (real property), a nonpossessory inter ...
from a thing possessed: for instance, by selling crops, leasing immovables or annexed movables, taxing for entry, and so on.
A usufruct is either granted in severalty or held in
common ownership
Common ownership refers to holding the assets of an organization, enterprise, or community indivisibly rather than in the names of the individual members or groups of members as common property. Forms of common ownership exist in every economi ...
, as long as the property is not damaged or destroyed. The third civilian property interest is ''abusus'' (literally ''abuse''), the right to alienate the thing possessed, either by consuming or destroying it (e.g., for profit), or by transferring it to someone else (e.g.,
sale,
exchange,
gift). Someone enjoying all three rights has full
ownership
Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as '' title'', which may be separated and held by dif ...
.
Generally, a usufruct is a system in which a person or group of persons uses the real property (often land) of another. The "usufructuary" does not own the property, but does have a legally cognizable interest in it, which is sanctioned or contractually granted by the owner. Two different types of usufruct exist: perfect and imperfect. In perfect usufruct, the usufructuary is entitled to the use of the property but cannot substantially change it. For example, an owner of a house can grant a usufruct to a resident; the resident could live in (use) the house, but could not (without the owner's assent) renovate it or tear it down and build a bigger house.
An imperfect usufruct gives the usufructuary some rights to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agriculture, the usufructuary may be given the right to make improvements for agricultural purposes such as building a barn or laying irrigation pipes. This, however, may be ill-advised for the usufructuary inasmuch as they do not own whatever improvements they make and have no claim against the owner for their value, unless this is specifically laid out in the contract creating the usufruct.
In many cases of tenure by usufruct, such as the ''
ejido'' system in
Mexico
Mexico, officially the United Mexican States, is a country in North America. It is the northernmost country in Latin America, and borders the United States to the north, and Guatemala and Belize to the southeast; while having maritime boundar ...
, individuals or groups may only acquire the usufruct of the property, not legal ownership. Usufructs are similar in nature to
common-law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prec ...
life estates, save that a usufruct can be granted for a specified term rather than for life.
History
Usufruct comes from
civil law, under which it is a subordinate
real right (''ius in re aliena'') of specified duration, usually for a person's lifetime. The holder of a usufruct, known as the usufructuary, has the right to use (''usus'') the property and enjoy its fruits (''fructus''). In modern terms, ''fructus'' more or less corresponds to the
profit
Profit may refer to:
Business and law
* Profit (accounting), the difference between the purchase price and the costs of bringing to market
* Profit (economics), normal profit and economic profit
* Profit (real property), a nonpossessory inter ...
derived, as when selling the "fruits" (in both literal and figurative senses) of the land, or leasing homes on the land to tenants.
''Fruits'' refers to any
renewable commodity on the property, including (among others) agricultural goods (literal "fruits", hence the name), livestock, goods produced in a factory, or rents from tenants. These may be divided into civil (''fructus civiles''), industrial (''fructus industriales''), and natural fruits (''fructus naturales''), the latter of which, in Roman law, included
slaves
Slavery is the ownership of a person as property, especially in regards to their labour. Slavery typically involves compulsory work, with the slave's location of work and residence dictated by the party that holds them in bondage. Enslavemen ...
and
livestock
Livestock are the Domestication, domesticated animals that are raised in an Agriculture, agricultural setting to provide labour and produce diversified products for consumption such as meat, Egg as food, eggs, milk, fur, leather, and wool. The t ...
.
Under
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
, usufruct was a type of personal
servitude (''servitutes personarum''), a beneficial right in another's property. The usufructuary never had
possession (in the legal sense) of the property (on the basis that if he possessed at all, he did so through the owner), but did have an interest in the property itself for the specified period (either a set term or a lifetime). Unlike the owner, the usufructuary did not have a right of
alienation (''abusus''), but could sell or lease the usufructuary interest. Even though the usufructary did not hold possessory title, he had a cause of action against infringements on his usufruct rights by a third party, such as theft of goods from the property.
In some now-disused systems of
customary law
A legal custom is the established pattern of behavior within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".
Customary law (also, consuetudinary or unofficial law) exists wher ...
among the
indigenous peoples of the Americas
In the Americas, Indigenous peoples comprise the two continents' pre-Columbian inhabitants, as well as the ethnic groups that identify with them in the 15th century, as well as the ethnic groups that identify with the pre-Columbian population of ...
, usufruct refers to the legal concept that all land is
publicly owned, but individuals and groups can acquire the right to use certain areas, usually for agriculture. Some cultures held this to be similar in concept to a perfect usufruct; one could not damage the land so as to reduce its future productivity. Ancient examples of usufruct are found in the
Code of Hammurabi
The Code of Hammurabi is a Babylonian legal text composed during 1755–1750 BC. It is the longest, best-organized, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian language, Akkadi ...
and the
Law of Moses
The Law of Moses ( ), also called the Mosaic Law, is the law said to have been revealed to Moses by God. The term primarily refers to the Torah or the first five books of the Hebrew Bible.
Terminology
The Law of Moses or Torah of Moses (Heb ...
. The Law of Moses forbade landowners from harvesting the edges of their fields, and reserved the
gleanings for the poor.
Thomas Jefferson
Thomas Jefferson (, 1743July 4, 1826) was an American Founding Fathers of the United States, Founding Father and the third president of the United States from 1801 to 1809. He was the primary author of the United States Declaration of Indepe ...
famously wrote in 1789 that "Earth belongs in usufruct to the living." Jefferson's
metaphor
A metaphor is a figure of speech that, for rhetorical effect, directly refers to one thing by mentioning another. It may provide, or obscure, clarity or identify hidden similarities between two different ideas. Metaphors are usually meant to cr ...
means that, like a usufructuary, human beings have the right to use the earth for their own benefit and derive profit from it, but only to the extent that their actions do not impoverish the earth's bounty for future generations. It was, in other words, an expression both of rights (of the living) and obligations (of the living to those yet to be born). Jefferson's use of the word "living" is critical here: he meant that the usufructuaries of the world are those who are alive, not deceased past generations. This idea would profoundly influence Jefferson over the course of his life, and would lead to his acknowledgement that the Constitution of the United States would be revised by future generations, and was part of the reason that the Constitution includes a provision for its own amendment.
Local variations
France
In
France
France, officially the French Republic, is a country located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...
, usufructs are often created as part of
inheritance
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offi ...
. Under French law an
indefeasible portion known as the ''forced estate'' passes to the deceased's surviving spouse and
issue (with shares apportioned according to the number of children), with the rest of the estate – the ''free estate'' – free to dispose of by
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and will
...
. However, if there is a
surviving spouse, they may elect to do one of the following:
1) Distribute the forced estate as is, or convert it into a usufruct
2) Break up the estate into a distributable portion and a usufruct good for the children's lifetime.
If a usufruct is chosen, a value is set for the usufruct interest for
inheritance tax
International tax law distinguishes between an estate tax and an inheritance tax. An inheritance tax is a tax paid by a person who inherits money or property of a person who has died, whereas an estate tax is a levy on the estate (money and pro ...
purposes and payable by the surviving spouse, with regard to their age. The value of
movable property associated with the estate is calculated based on the appraised value of the estate's assets. The value of the surviving spouse's usufruct is subtracted, and whatever balance as remains is divided among the heirs on the death of the surviving spouse. The surviving spouse may do whatever they wish with the movable assets (household items, furniture and the like), with the monetary value of the items going to the children. Title to assets does not pass, and the usufruct is dissolved on death or at the end of a term of years.
Trust and usufruct are distinct and subject to different rules. French law is distinct from
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I.
Roman law also den ...
in understanding usufructs not as a type of
servitude, but rather possessory interests.
United States
Louisiana
Although the
United States
The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
is for the most part a
common law
Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
jurisdiction, employing
life estate
In common law and statutory law, a life estate (or life tenancy) is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death, when the property rights may rever ...
for those purposes for which civil law uses usufruct,
Louisiana
Louisiana ( ; ; ) is a state in the Deep South and South Central regions of the United States. It borders Texas to the west, Arkansas to the north, and Mississippi to the east. Of the 50 U.S. states, it ranks 31st in area and 25 ...
is a hybrid jurisdiction in the French tradition, at least in civil matters. In Louisiana, usufructs are created in a manner similar to other real rights, by
gift ("donation"),
will
Will may refer to:
Common meanings
* Will and testament, instructions for the disposition of one's property after death
* Will (philosophy), or willpower
* Will (sociology)
* Will, volition (psychology)
* Will, a modal verb - see Shall and will
...
("testament"), or
operation of law
The phrase "by operation of law" is a legal term that indicates that a right or liability has been created for a party, irrespective of the intent of that party, because it is dictated by existing legal principles. For example, if a person dies wi ...
. Nevertheless, they are typically granted ''cestui que vie''. Unless otherwise provided in a will, a person's share of
community property accedes to descendants as bare title holders ("naked owners"); nevertheless, if that person has a living spouse, the latter will receive a usufruct in that portion of the estate until death or remarriage (La. Civil Code art. 890). Under other conditions, the parents of the deceased may acquire similar usufruct rights.
Georgia
While
Georgia
Georgia most commonly refers to:
* Georgia (country), a country in the South Caucasus
* Georgia (U.S. state), a state in the southeastern United States
Georgia may also refer to:
People and fictional characters
* Georgia (name), a list of pe ...
does not share Louisiana's civil law history, the
Georgia General Assembly
The Georgia General Assembly is the state legislature of the U.S. state of Georgia. It is bicameral, consisting of the Senate and the House of Representatives.
Each of the General Assembly's 236 members serve two-year terms and are directl ...
created usufructs by statute in 1876. In Georgia, usufruct refers to "rights or privileges usually arising out of landlord and tenant relationships, and with privileges granted to tenants holding less interest in real estate than estate for years". Under Georgia law, if a landowner grants a lease for fewer than five years, it is a usufruct, and the landowner retains the estate. Georgia courts also hold that usufructs are created when the terms of contract between lessor and leaseholder are "so pervasive as to be fundamentally inconsistent with the concept of an
estate for years", or where the landowner retains "dominion and control" over a business operating on the property.
Philippines
Philippine law relating to usufruct is set forth primarily in Title VI of the Philippine Civil Code.
Scotland
A
liferent, the
Scots law
Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...
term for an usufruct, is the right to receive, for one's life, the fruits of an asset (real property or otherwise), without the right to sell it. The holder of such a right is known as the liferenter. The owner of a property burdened by a usufruct is called the fiar and right of ownership is known as the fee.
Cuba
Usufruct tenure was introduced in Cuba as part of a reorganization of the
agricultural sector during the
Special Period. As a legacy of sanctions and a struggling economy, Cuba had accumulated many crumbling buildings that could not be repaired. These were torn down and the empty lots lay idle for years until the food shortages forced major changes in Cuban agriculture to increase the efficiency of land use. Initially, this occurred by extralegal agricultural use of abandoned area. Later, usufruct tenure was established, giving farmers rights to product grown on usufruct land on a profit-sharing basis, but not ownership of the land itself.
India
Usufructuary
mortgage
A mortgage loan or simply mortgage (), in civil law (legal system), civil law jurisdictions known also as a hypothec loan, is a loan used either by purchasers of real property to raise funds to buy real estate, or by existing property owners t ...
in the Indian market denotes a unique property financing arrangement where a mortgage issuer grants an usufruct to a mortgage holder. This distinctive mortgage type integrates property ownership with debt service, granting the mortgagee the right to utilize and derive income from the property. Usufructuary mortgages are common in the agricultural sector; their purpose is to facilitate access to credit for cash-poor farmers whose assets are principally in land. The
Indian legal system recognizes and regulates usufructary mortgages.
In social ecology
Usufruct is a central concept in
social ecology.
Murray Bookchin
Murray Bookchin (; January 14, 1921 – July 30, 2006) was an American social theorist, author, orator, historian, and political philosopher. Influenced by G. W. F. Hegel, Karl Marx, and Peter Kropotkin, he was a pioneer in the environmental ...
defines usufruct informally as
The freedom of individuals in a community to appropriate resources merely by virtue of the fact that they are using them
Bookchin contrasts Usufruct with other property relations, saying:
Usufruct, in short, differs qualitatively from the quid pro quo of reciprocity, exchange, and mutual aid — all of which are trapped within history's demeaning account books with their "just" ratios and their "honest" balance sheets.
He pairs the concept of usufruct with complementarity and the irreducible minimum as core to his ethical world view.
What "civilization" has given us, in spite of itself, is the recognition that the ancient values of usufruct, complementarity, and the irreducible minimum must be extended from the kin group to humanity as a whole.
See also
* ''
Cestui que''
*
Classical liberalism
Classical liberalism is a political tradition and a branch of liberalism that advocates free market and laissez-faire economics and civil liberties under the rule of law, with special emphasis on individual autonomy, limited governmen ...
*
Common ownership
Common ownership refers to holding the assets of an organization, enterprise, or community indivisibly rather than in the names of the individual members or groups of members as common property. Forms of common ownership exist in every economi ...
*
Dominium
*
Dower
*
Easement
An easement is a Nonpossessory interest in land, nonpossessory right to use or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B" ...
*
Fee simple
In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., pe ...
*
Four Fs (legal)
*
Freedom to roam
*
Freehold (law)
A freehold, in common law jurisdictions or Commonwealth countries such as England and Wales, Australia, Canada, Ireland, India and the United States, is the common mode of ownership of real property, or land, and all immovable structures attach ...
*
Geolibertarianism
*
Georgism
*
Leasehold
A leasehold estate is an ownership of a temporary right to hold land or property in which a Lease, lessee or a tenant has rights of real property by some form of title (property), title from a lessor or landlord. Although a tenant does hold right ...
* ''
Minnesota v. Mille Lacs Band of Chippewa Indians''
*
Mutualism (economic theory)
*
Perpetual usufruct
*
Profit (real property)
*
Right-of-way (railroad)
A right of way (also right-of-way) is a specific route that people, animals, vehicles, watercraft, or utility lines travel, or the legal status that gives them the right to do so. Rights-of-way in the physical sense include controlled-access h ...
*
Rights of way in England and Wales
In England and Wales, excluding the 12 Inner London London boroughs, boroughs and the City of London, the Right-of-way (property access), right of way is a legally protected right of the public to pass and re-pass on specific paths. Private ri ...
*
Squatting
*
Trover
Trover () is a form of lawsuit in common law jurisdictions for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the valu ...
*
Usucaption
References
{{Authority control
Property law
Civil law (legal system)
Civil law legal terminology
Property law legal terminology