Real Estate Terminology

A right to the use and enjoyment of the fruits or profits of another’s property, without fundamentally changing its substance. "Usufruct (usufruit) is the right to enjoy things of which another is owner, in the same way as an owner, but subject to an obligation to conserve the substance" French C. Civ., art. 578 (Just Inst 1, 2, 37; Quebec CC, art. 1120). "In order to define usufruct it is necessary to introduce two other characteristics: (a) first, usufruct is a temporary right, and in the majority of cases, for a life [of a person or a corporate entity, which is restricted to 30 years] … (b) also usufruct is a real right (droit réel) …" Patrice Jourdain, Droit Civil, Les Biens (1995), p. 103. Usufruct grants the right to use the property and receive the fruits (fruits) therefrom. Without the right of usufruct, there is the complementary right called bare ownership (nue–propriété) and when the usufruct is extinguished the bare ownership reverts to absolute ownership (pleine propriété). Usufruct comprises two of the rights to property as recognized in Roman law, the right of user (usus) and the right of enjoyment (fructus), but does not include the right to destroy or ‘abuse’ the property (abusus), this latter right is only available to the nu–propriétaire (absolute owner).

Usufruct may be created by agreement or by testamentary grant (volonté de l’homme) or it may be created by law, as with the right of parents over the property of their children while they are minors (C. Civ., art. 579; C. Civ., art. 382). Usufruct may be granted over corporeal or incorporeal property, movable (meubles) or immovable (immeubles) property (C. Civ., art. 581). Unlike a lessee, the usufructuary takes and accepts the thing as he finds it, but is obliged to return the subject matter as he found it originally or to provide equivalent value. Although, if the property wears out through normal use, as with most goods, the usufructuary is not responsible for such degradation (C. Civ., art. 589). The grantor or bare–owner (nu–propriétaire), is responsible primarily for grosses réparations and the usufructuary for maintenance, but not for deterioration due to wear and tear (vétusté) or damage caused by force majeure (C. Civ., art. 607).

A usufruct may come to an end (a) at the end of the life of the grantee; (b) at the end of a set period of limitation; upon the expiration or exhaustion of the thing granted; (d) after a period 30 years of non–user; or (e) by renunciation, merger or subrogation. It is a right that may be mortgaged, charged or otherwise alienated, unless there is a prohibition to the contrary in the terms of the grant.

Usufruct is recognized in a few jurisdictions in North America, notably in Quebec (Quebec CC, arts. 1124–1171); Louisiana (La. CC, arts. 533–645); and other states that came under French or Spanish jurisdiction: "Usufruct is a right of using and enjoying and receiving the profits of property that belongs to another. … Three types of usufruct exist. First, there are the natural profits produced by the subject of the usufruct. For example, the profits produced spontaneously by the earth or animals, such a timber, herbs, fruits, wool, milk, and the young of cattle are natural. Second, there are industrial profits, which are profits produced by cultivation, such as crops of grain. Third, there are civil profits, which are rents, freights, and revenues from annuities and from other effects and rights" Marshall v. Marshall, 735 SW.2d 587, 598 (Tex Civ App 1987) (Noel v. Landry, 531 So.2d 570, 573 (La Ct App 1988)). See also démembrements de la propriété, droit d’habitation, droit d’usage, use.

1. A person who has a right of usufruct, i.e. a right to use (usus) property and reap profit (fructus) therefrom, provided he does not alter its substance. "A usufructuary (usufruitier) has the right to enjoy all manner of fruits (fruits), whether natural, industrial or civil, which are capable of being provided by the object of the usufruct" French C. Civ., art. 582. (C. Civ., arts. 600–616).

2. Of or relating to the right of usufruct.

Usufructuary; one who has a right of usufruit (usufruct). cf. nu–propriétaire.

Terms in bold are defined elsewhere in the hard copy of the Encyclopedia.