USUFRUCTO IN SPAIN
In this blog we will explain you what is an usufructo, types, constitution and extinction of the right.
WHAT IS THE MEANING OF “USUFRUCTO”?
Usufructo is the right to enjoy the assets/property of a third person for a given term with the obligation to preserve its form.
It is regulated at Article 467 of the Spanish Civil Code (Código Civil Español): «derecho a disfrutar los bienes ajenos con la obligación de conservar su forma y sustancia, a no ser que el título de su constitución o la ley autoricen otra cosa».
“The right to use and reap the proceeds from another’s property with the obligation to preserve its form and substance, unless the instrument granting that right or the law provides otherwise”
The beneficiary of the” usufructo”, who is called “usufructuario”, may use and enjoy the “fruits” (proceeds, profit, etc.) from the property, but without damaging or diminishing it. The property owner granting an “usufructo” is known as a “nudo propietario”.
The means that the “nudo propietario” is the person who owns the property/good/asset but he/she cannot enjoy it. The “usufructuario” is the person who has the right of using and enjoy it, but he is not the owner.
WHICH ARE THE RIGHTS OF THE USUFRUCTURARIO?
The usufructuario has the right to rent the property and receive income, but not to sell it.
On the contrary, he can sell his right of usufructo. If this happens, the buyer acquires the right of usufructo and obtains the same benefits and obligations as the previous usufructuario, that is, with the same conditions. However, the first usufructuario will be responsible for the problems that the person who replaces him may cause to the assets or property.
If the owner (nudo propietario) sells the property which has an usufructo, the future owner will not be able to use the property/asset it until the end of the usufructo term.
HOW CAN AN USUFRUCTO BE DONE?
The most normal is to establish it in writing and if possible before a Notary. It will always be necessary for a lawyer to write the usufruct contract or stipulate it in a will.
There are four ways to constitute a usufruct:
1. By law.
2. By testament (last will).
3. By the will of individuals manifested in acts such as donations, sales or other legal acts.
4. By prescription (when it is constituted over time). It is also called “Usucapión”.
HOW MANY TYPES OF USUFRUCTO EXIST?
A) By its constitution
- Legal usufructo
It is when the law stablishes it.
The Law says that the only legal usufructo is the one from the widow and widower. It happens when the person who has become widow or widower has the right to receive:
- Usufructo of the second third of the heritage (called “tercio de mejora”): This happens when there are children or descendants (which are the legal heirs). As the name implies, the inheritance is divided into three. The first two thirds go to forced heirs (children or descendants) and, by law, the third part would belong to the spouse. This is the normal procedure, unless one of them has been disinherited expressly.
- Usufructo of the half of the heritage: It happens when there are no children but there are ancentries. The heritage is divided into two parts; one for the ancestries, and the second of the widow or widower.
- Usufructo of 2/3 of the heritage: It happens when there are not descendants or ancestries, so the heritage is for the widow or widower.
- Usufructo by “Usucapion” usufructo
“Usucapion” or “Prescripción adquisitiva” is a way of acquiring rights (“derechos reales”).
It happens when a person has owned the property for so long, that the legal system considers that it deserves to be its owner.
- Voluntary usufructo
This usufructo is made by the agreement of both parts.
There are two different voluntary usufructo:
- Inter-vivos: When is made by both parties (i.e.: when a person buys a property and gives the usufructo to his son or daughter).
- Mortis causa: It is made in a will. (i.e.: a person can say at his will that the property will belong to his son, but that the usufructo will be given to his grandson).
B) By the object
- Usufructo of material assets (properties or goods):
- Items that can be damaged: the usufructuario could make normal use of the goods which can be deteriorated over time, and he will not be obliged to return them at the end of the usufructo. However, he will have to compensate the owner if he is guilty of the damage caused. (i.e.: a painting).
- Consumable items: the usufructuario would have to pay the amount of its value or return the same quantity and quality of the item. (i.e.: money).
- Mountains, trees and plantations: the usufructuario can enjoy the benefits of nature and its products.
- Vineyards, olive groves, trees, shrubs and other plantations: the usufructuario can enjoy the benefits of nature and its products, but will have to replace them with others. If any natural incident occurs or that has nothing to do with the usufructuario and virtually everything has been lost, it may require the owner to remove them.
- Cattle or herd: the usufructuario can take advantage of the benefits and products of these animals, but must replace the animals that die each year, whatever the cause of death.
- Usufructo of rights
The usufructo can be on a right, except if that right is personal (such as the right of life, freedom …), also called “Derechos intrasmisibles”, because they are inseparable from its owner. In this case, the usufructuario acquires the benefits or utilities of said right.
(i.e.: if an usufructo is given on a credit right, the usufructuario will receive only the interest).
C) By its duration
• Temporary: (i.e.: for 10 years, for 20 years, etc).
• For life (called “Vitalicia”): It lasts all the lifetime of the usufructuario.
