Usufruct
Property law |
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Part of the common law series |
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Acquisition |
Estates in land |
Conveyancing |
Future use control |
Nonpossessory interest |
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Higher category: Law and Common law |
Usufruct (/ˈjuːzjuːfrʌkt/)[1] 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 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, 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.
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 an interest in it, which is sanctioned or contractually allowed by the owner. Two different systems of usufruct exist: perfect and imperfect. In a perfect usufruct, the usufructuary is entitled to the use of the property but cannot substantially change it. For example, an owner of a small business may become ill and grant the right of usufruct to an individual to run their business. The usufructuary thus has the right to operate the business and gain income from it, but does not have the right to, for example, tear down the business and replace it, or to sell it.[2] The imperfect usufruct system gives the usufructuary some ability to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agricultural use, the usufructuary may have the right to not only grow crops on the land but also make improvements that would help in farming, say by building a barn. However this can be disadvantageous to the usufructuary: if a usufructuary makes material improvements – such as a building, or fixtures attached to the building, or other fixed structures – to their usufruct, they do not own the improvements, and any money spent on those improvements would belong to the original owner at the end of the usufruct.[3][4][additional citation(s) needed]
In many usufructuary property systems, such as the traditional
History
Usufruct comes from civil law, under which it is a subordinate real right (ius in re aliena) of limited duration, usually for a person's lifetime. The holder of a usufruct, known as a 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 one may make, as when selling the "fruits" (in both literal and figurative senses) of the land or leasing a house.
Fruits refers to any renewable commodity on the property, including (among others) actual fruits, livestock and even rental payments derived from the property. 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 and livestock.
Under
In some indigenous cultures, usufruct means the land is owned in common by the people, but families and individuals have the right to use certain plots of land. Land is considered village or communal land rather than owned by individual people. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community.
Ancient examples of usufruct are found in the Code of Hammurabi and the Law of Moses. The Law of Moses directed property owners not to harvest the edges of their fields, and reserved the gleanings for the poor.[6]
Thomas Jefferson famously wrote in 1789 that "Earth belongs – in usufruct – to the living." Jefferson's metaphor 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.[7]
Local variations
France
In
The value of furniture and household items is calculated using a standard formula based on the appraised value of the estate's liquid and non-liquid assets, then the usufruct's value to the surviving spouse is subtracted, and finally the remaining balance is divided among the children on the death of the surviving spouse. This simplifies handling household items since the surviving spouse is free to maintain, replace or dispose of them as he/she wishes during his/her lifetime, with the monetary value of the items going to the children. Title to assets does not pass, and the usufruct disappears on death or at the end of a term of years. A usufruct is distinct from a
United States
Louisiana
Although the
Georgia
While
Philippines
Philippine law relating to usufruct is set forth primarily in Title VI of the Philippine Civil Code.[13]
Scotland
A
Cuba
Usufruct has been revived as part of the agricultural change associated with Cuba's 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 Cuban citizens to make use of every piece of land. Initially, this was an ad-hoc process where ordinary Cubans took the initiative to grow their own food in whatever piece of land was available. Tenure but not ownership was formalised with a legal framework using usufruct to give farmers rights on a profit-sharing basis to the products produced from the land, but not ownership rights to the land itself.[14][15]
India
Usufructuary mortgage in the Indian market denotes a unique property financing arrangement where the mortgagor surrenders possession to the mortgagee, explicitly or implicitly. This distinctive mortgage type intertwines property ownership & loan repayment, granting the mortgagee the right to utilize and derive income from the property. Commonly employed in agricultural sectors, this arrangement aids farmers who may lack liquidity but possess valuable land assets. Usufructuary mortgages align with India's diverse economic landscape, facilitating financial access for those with immovable assets. The Indian legal system recognizes and regulates these transactions, emphasizing the nuanced role this mortgage type plays in fostering economic activities, especially in rural settings.
In social ecology
Usufruct is a central concept in
The freedom of individuals in a community to appropriate resources merely by virtue of the fact that they are using them [16]
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.[16]
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.[16]
See also
- Cestui que
- Classical liberalism
- Common ownership
- Dominium
- Dower
- Easement
- Fee simple
- Four Fs (legal)
- Freedom to roam
- Freehold (law)
- Geolibertarianism
- Georgism
- Leasehold
- Minnesota v. Mille Lacs Band of Chippewa Indians
- Mutualism (economic theory)
- Perpetual usufruct
- Profit (real property)
- Right-of-way (railroad)
- Rights of way in England and Wales
- Squatting
- Trover
- Usucaption
References
This article needs additional citations for verification. (May 2010) |
- ^ "usufruct". Oxford English Dictionary second edition. Oxford University Press. 1989. Retrieved 19 December 2018.
- ^ Staff, Investopedia (2003-11-24). "Usufruct". Investopedia. Retrieved 2018-08-03.
- ^ "Property Matters: The Ins and Outs Of a Usufruct - Property24.com". www.property24.com. Retrieved 2018-08-03.
- ^ "Usufruct | law". Encyclopedia Britannica. Retrieved 2018-08-03.
- ISBN 978-92-64-10501-0.
- Leviticus19:9-10, 23:22.
- ^ "The Earth Belongs in Usufruct to the Living | The Papers of Thomas Jefferson". jeffersonpapers.princeton.edu. Retrieved 2018-08-03.
- ^ La. C.C. art. 891.
- ^ Ga. L. 1876, p. 35, § 1.
- ^ Roe v. Doe, 246 Ga. 138, 140, 268 S.E.2d 901, 904 (1980) (quoting Martin v. Heard, 239 Ga. 816, 818 – 19, 238 S.E.2d 899, 901 (1977)).
- ^ O.C.G.A. § 44-7-1
- ^ Diversified Golf, LLC v. Hart County Bd. of Tax Assessors, 267 Ga. App. 8, 14, 598 S.E.2d 791, 796 (2004) (quoting Camp v. Delta Air Lines, 232 Ga. 37, 40, 205 S.E.2d 194 (1974); Allright Parking of Georgia v. Joint City-County Bd. of Tax Assessors, 244 Ga. 378, 387, 260 S.E.2d 315 (1979); Buoy v. Chatham County Bd. of Tax Assessors, 142 Ga. App. 172, 173, 235 S.E.2d 556 (1977)).
- ^ Book II, Property, Ownership, and its Modifications, Republic Act No. 386, The Civil Code of the Philippines (June 18, 1949), Chan Robles Law Library.
- ISBN 9781403962591.
- ^ Audrey C. Fusco (2008). Local Food, Sustainability, and Cuba's National Food Program (PDF) (Thesis).
- ^ a b c Bookchin, Murray (1982). The Ecology of Freedom: The Emergence and Dissolution of Hierarchy.