Usufruct
Encyclopedia
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 gleaning
s 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 estate
s. 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.
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
that either belongs to another person or which is under common ownership
Common ownership
Common ownership is a principle according to which the assets of an enterprise or other organization are held indivisibly rather than in the names of the individual members or by a public institution such as a governmental body. It is therefore in contrast to public ownership...
, as long as the property is not damaged or destroyed. In many legal usufruct systems of property, such as the traditional ejido
Ejido
The ejido system is a process whereby the government promotes the use of communal land shared by the people of the community. This use of community land was a common practice during the time of Aztec rule in Mexico...
system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal land ownership.
Usufruct originates from civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, 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
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
, usufruct was a type of servitude
Equitable servitude
An equitable servitude is a term used in the law of real property to describe a nonpossessory interest in land that operates much like a covenant running with the land. However, covenants and equitable servitudes should not be confused. One may tell the difference based on the remedy plaintiff...
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
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action in rem...
right to the property itself. Unlike the owner, he did not have the right of alienation
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on 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
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
and livestock
Livestock
Livestock refers to one or more domesticated animals raised in an agricultural setting to produce commodities such as food, fiber and labor. The term "livestock" as used in this article does not include poultry or farmed fish; however the inclusion of these, especially poultry, within the meaning...
.
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 gleaning
Gleaning
Gleaning is the act of collecting leftover crops from farmers' fields after they have been commercially harvested or on fields where it is not economically profitable to harvest...
s for the poor.
In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Aboriginal people have a usufructuary right to hunt and fish without restriction on Crown lands.
In Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, usufructs generally are created in a manner similar to other real rights, through donation, testament, or operation of law. They typically operate as life estate
Life estate
A life estate is a concept used in common law and statutory law to designate the ownership of land for the duration of a person's life. In legal terms it is an estate in real property that ends at death when there is a "reversion" to the original owner...
s. Unless otherwise provided in a will, a person's share of community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
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
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan 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.
See also
- Common ownershipCommon ownershipCommon ownership is a principle according to which the assets of an enterprise or other organization are held indivisibly rather than in the names of the individual members or by a public institution such as a governmental body. It is therefore in contrast to public ownership...
- easementEasementAn easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
- leasehold
- perpetual usufructPerpetual usufructPerpetual usufruct is the English-language term often used by Polish lawyers to describe the Polish version of public ground lease. It is usually granted for 99 years, but never shorter than 40 years, and enables leasehold use of publicly-owned land, in most cases located in urban areas...
- profit-a-prendre
- TroverTroverTrover is a form of lawsuit in common-law countries 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 value of whatever was taken, not for the recovery of the...
- Cestui que
- Freedom to roam
- Minnesota v. Mille Lacs Band of Chippewa IndiansMinnesota v. Mille Lacs Band of Chippewa IndiansMinnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 , was a United States Supreme Court decision concerning the usufructuary rights of the Chippewa tribe to certain lands it had ceded to the federal government in 1837...
- Rights of way in the United KingdomRights of way in the United KingdomIn England and Wales, public rights of way are paths on which the public have a legally protected right to pass and re-pass. The law in England and Wales differs from that in Scotland in that rights of way only exist where they are so designated whereas in Scotland any route that meets certain...
- right-of-way (railroad)Right-of-way (railroad)A right-of-way is a strip of land that is granted, through an easement or other mechanism, for transportation purposes, such as for a trail, driveway, rail line or highway. A right-of-way is reserved for the purposes of maintenance or expansion of existing services with the right-of-way...