Reform of property law - Usufruct right
15/09/2021

The usufruct right is de ned as a right in rem that “confers on its holder the temporary right to the use and enjoyment, in a prudent and reasonable manner, of a property belonging to the bare owner, in accordance with the destination of that property and with the obligation to return it at the end of the right”.

The essential features and main principles are as follows.

Temporary right

The usufruct is a temporary right which expires upon the death of the usufructuary. When the usufruct is granted to a legal entity, its maximum duration is 99 years. Clari cation by the legislator: the declaration of bankruptcy and the voluntary dissolution put an end to the usufruct,

it being speci ed that, unless otherwise provided for, the merger, de-merger or similar operation does not put an end to the usufruct.

Within the 99-year limit, the parties may agree to extend their usufruct right. At the end of the usufruct, the parties may renew it by express agreement.

Obligations of the usufructuary

According to the de nition, the usufructuary has the obligation to respect the destination of the property and to return it at the end of the right.
The usufructuary also has the obligation to insure the property, and to bear the periodical charges related to its use and enjoyment.

“Parties should agree contractually what they understand under maintenance and what major repairs are”

Maintenance and major repairs

The usufructuary is obliged to make the necessary maintenance repairs to maintain the value of the property, subject to normal wear and tear, obsolescence and cases of force majeure.

The bare owner is responsible for major repairs. No more enumerations, which were not (anymore) adapted to the construction techniques; major repairs are now understood as being (i) those which relate to the structure of the property or its inherent components or (ii) those whose cost clearly exceeds the “fruits” (revenues) of the property. This de nition will give rise to discussion. We therefore recommend specifying these concepts contractually.

Compensation mechanism

New: the cost of major repairs is no longer exclusively borne by the bare owner. The legal provisions now provide for a sharing of costs between the usufructuary and the bare owner: the bare owner who has carried out major repairs is entitled to claim a proportional contribution in those costs from the usufructuary. It is however regrettable that the calculation of this proportional contribution must be based on the usufruct conversion tables applicable
in inheritance law, which is inappropriate for commercial property.

End of the usufruct right

At the end of his right, the usufructuary must return the property in the same condition, subject to any diminution in value caused by normal wear and tear, obsolescence
or force majeure. The state of in which the property must be returned is the initial state (i.e. the state in which the usufructuary received the property) as it appears from the description drawn up at the beginning of the usufruct right. In the absence of such a description, the usufructuary is deemed to have received the property in a good condition and without defect.

In case the usufructuary has built buildings or planted plantings during the term of his right, the buildings and plants revert to the bare owner by accession at the end of the right. Where such constructions or plantations have been authorized by the bare owner but not imposed on the usufructuary, the bare owner must compensate the usufructuary based on unjust enrichment.

Voir aussi : Loyens & Loeff CVBA

[+ http://www.loyensloeff.com]


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