Many people have heard of usufruct and use this concept in many situations, even if they are unaware of its meaning and legal application. There are some doubts about how and when it can be applied. But what does this term mean? Provided for in articles 1225 (IV) and 1390 to 1411 of the Civil Code, this prerogative of use is considered a real right of fruition (usufruir) over something else in which one person confers on another the right to temporarily use a material or immaterial asset and defines this in its TTITLE VI ‘Usufruct’.
Which goods are eligible for enjoyment?
In CHAPTER I of General Provisions, Article 1.390 of the Civil Code says that “usufruct can be applied to one or more assets, whether movable or immovable, the entire estate or part of it, covering all or part of the fruits and utilities”. This provision is quite wide-ranging and may, according to the quote (Diniz, 2011, p. 376), “be any property, tangible or intangible, such as copyright, works of art and shares in corporations.” And in its Art. 1.394 provides that the usufructuary has the right to possession, use, administration and perception of the fruits. However, Article 1.391 warns that the ‘usufruct of real estate’, when not the result of usucaption, shall be constituted by registration with the Real Estate Registry Office.
“For individuals, the right of usufruct cannot exceed the duration of their lives. For a legal entity, it cannot exceed 30 years” - Clóvis Beviláqua, jurist and one of those responsible for drafting the Civil Code of 1916.
Why is usufruct interesting?
According to the Civil Code, ownership is split between two parties: the person who owns the property (usufructuary) and makes the donation, reserves the usufruct for himself, or in other words, ceases to be the owner, but has dominion over it, can enjoy it in any way he wants, being able to rent, lend, lease or leave it unused, etc.). The person who receives this property and becomes the “owner”, but does not have the usufruct, is called the “nu-proprietário”.
Usufruct is a process that can be done during life, so that after death, the asset in question is already destined for the right person. The term comes from the Latin ‘usus fructus’ or use of the fruits, and means that the person to whom the owner destines it will be able to use the asset, without anyone being able to sell it.
“Usufruct cannot be transferred by alienation; but its exercise can be assigned by gratuitous or onerous title”. (Marcelo Andrade Ferraz - O Direito Real de Usufruto e Sua Verdadeira Vedação de Transferência)
One example is a father who transfers property to his daughter, passing it on to her. In other words, the father will enjoy the property during his lifetime, but she will reap the rewards. Why is this interesting? Precisely because the owner can allocate his property to whom he feels is entitled to it, i.e. it is possible to divide the assets during his lifetime and not leave them to be divided after his death, thus avoiding possible litigation when there is a conflict of interest over the assets by the heirs. It is usually carried out when people are older and so they already allocate the assets, whether to direct heirs or entities, obviously following certain rules which prohibit them from allocating everything. And through this system it is possible to resolve the division of assets.
Paulo Hoffman in his article: What is usufruct anyway? He emphasizes that it is very common to establish this right by donation (from father and mother to children, for example), but it can also be done by will.
When can this benefit end?
- Article 1.410 of the Civil Code states that the usufruct is extinguished by canceling the registration at the Real Estate Registry Office in certain situations:
- I - Resignation or death of the usufructuary;
- II - By the end of its duration;
- III - Extinction of the legal entity, in favor of whom it was constituted, or, if it continues, by the expiration of thirty years from the date on which it began to be exercised;
- IV - Cessation of the reason from which it originated;
- V - By the destruction of the thing, subject to the provisions of Arts. 1.407, 1.408, 2nd part, and 1.409;
- VI - For consolidation;
- VII - Through the fault of the usufructuary, when they dispose of, deteriorate or allow the property to be ruined;
- VIII - For non-use, or non-enjoyment, of the thing on which the usufruct falls (Arts. 1.390 and 1.399).
Was this article useful? That's why you need to take some precautions when buying property directly from the owner. Before buying, seek the advice of a lawyer to confirm whether there is a ‘usufruct’ clause in the contract of sale, which allows you to take possession after the usufruct has expired.