Usufruct: a key concept in estate planning
¨By: Alex Lema
Within the real estate practice, the fact that parents reserve the usufruct and the bare property is given to their children is a quite common practice. However, some clarifications are necessary.
¿Can I lease a property if I have the usufruct?
Yes, the usufructuary may lease the property, as long as he has not agreed with the owner that it is forbidden to lease or assign it to anyone for a consideration or free of charge.
How is the usufruct usufruct?
There are four ways to constitute the right to usufruct
- By law, such as that of the parent over certain assets of the child;
- By will;
- By donation, sale or other act between living persons; and
- A usufruct can also be acquired by prescription.
When is the usufruct extinguished?
- The usufruct is extinguished for a period of time determined by instrument
legal: it will depend on the term for which the usufruct was agreed: This means that it will end once the specified time has elapsed. - Life usufruct: by the death of the usufructuary, even if it occurs before the day or condition fixed for its termination. Thus the usufruct cannot last longer than the life of the usufructuary and is not transferable by death. If the usufruct is terminated by the death of the usufructuary because it is a usufruct for life, the obligation to repay corresponds to the successors or heirs.
- By the consolidation of the usufruct with the bare ownership, which takes place when, for any circumstance, the bare owner and the usufructuary become the same person. For example: if the bare owner acquires the usufruct from the usufructuary or the usufructuary is heir of the bare owner and the death of the latter occurs.
- By prescription, since, if it is not exercised, if it can extinguish and another, for having been in possession, for being a real right, can acquire it by this way.
- By the renunciation of the usufructuary.
Can I sell a property that was given in usufruct?
Yes, the only disadvantage is that only the bare property would be sold, with the usufruct being retained by the person who initially constituted it, with the authorization and subscription of the person who holds the usufruct, whether temporary or for life.