usufruct

Definition of usufruct

Etymology

From Late Latin usufructus from Latin ūsus et fructus (use and enjoyment), cognate to English use and fruit.

Pronunciation

• (UK) IPA: /ˈjuːz(j)uːfɹʌkt/

Noun

usufruct (plural usufructs)

1. (law) The legal right to use and derive profit or benefit from property that belongs to another person, as long as the property is not damaged.

Further reading

Usufruct is the legal right to use and derive profit or benefit from property that either belongs to another person or which is under common ownership, as long as the property is not damaged or destroyed. In many legal usufruct systems of property, such as the traditional ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.

Usufruct originates from civil law, where it is a real right of limited duration on the property of another. The holder of an usufruct, known as the usufructuary, has the right to use and enjoy the property, as well as the right to receive profits from the fruits of the property. The English word usufruct derives from the Latin expression usus et fructus, meaning "use and enjoyment", cognate to English "use and fruits".

In Roman Law, usufruct was a type of servitude or ius in re aliena, a right in another's property. The usufructuary never had possession of this property (on the basis that if he possessed at all, he did so through the owner), but he did have an in rem right to the property itself. Unlike the owner, he did not have the right of alienation (abusus), but he could sell or let his enjoyment of the usufruct. Despite the usufructuary's lack of possession a modified form of the possessory interdicts was available to him.

The term fruits should be understood to mean any replenishable commodity on the property, including (among others) actual fruits, livestock and even rental payments derived from the property. These may be divided into civil and natural fruits, the latter of which, in Roman law, included slaves and livestock.

In tribal cultures usufruct means the land is owned in common by the tribe, but families and individuals have the right to use certain plots of land. Most Indian tribes owned things like land as a group and not as individuals. The family never owned the land, they just farmed it. This is called usufruct land ownership. A person must make (more or less) continuous use of the item or else he loses ownership rights. This is usually referred to as "possession property" or "usufruct." Thus, in this usufruct system, absentee ownership is illegitimate.

The oldest 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.

In Canada, Aboriginal people have a usufructuary right to hunt and fish without restriction on Crown lands.

In Louisiana, usufructs generally are created in a manner similar to other real rights, through donation, testament, or operation of law. They typically operate as life estates. Unless otherwise provided in a will, a person's share of community property accedes to descendants as naked owners, however if that person has a living spouse, the latter will receive a usufruct in that portion of the estate until death or remarriage (Civil Code Art. 890). Under certain other conditions a usufruct may arise giving rights to that person's parents (Civil Code Art. 891).

In France (and possibly other countries whose legal system is based on Roman law), usufruct is used in inheritance law. If a partner dies, the law states that a proportion of his or her estate must pass down to his or her children (the proportion depending on the number of children), with the balance of the estate being passed on according to the wishes of the deceased. However the surviving partner may choose whether the children's share should be passed on immediately, or part passed on now and the balance made available to them during their lifetime through usufruct, or the entire amount made available to them through usufruct. Where one of the usufruct options is chosen, a value is placed on the value of the usufruct for the purposes of inheritance tax payable by the surviving partner, on a sliding scale according to his or her age. For furniture and household items, a value is calculated using a standard formula based on the value of the property and financial parts of the estate, the value of the usufruct to the surviving partner is subtracted from this, and the balance is divided amongst the children on the death of the surviving partner. This simplifies dealing with household items, as the surviving partner is free to maintain, replace or dispose of them as he or she wishes during his or her lifetime, with the children getting the financial value of the items in due course. There is no succession as to the underlying property ownership, as the usufruct right disappears on death or at the end of the term. It also does not fall within the notion of a settlement in equitable terms as there is no trust created. It would also not be correct to assume that a usufruct constitutes a servitude charge or burden in common law property terms, as it is a right sufficient unto itself; and is not dependent upon or charged on a different property than that to which it is attached, and from two of whose salient Roman Law attributes it is constituted.