A personal servitude is a right against a property which is to the benefit of a certain person. A Usufruct is a personal servitude, which allows the holder (usufructuary) rights to use property which is owned by someone else, known as "the bare domiminium owner". It is registered by way of a Notarial Deed at the Deeds Office and endorsed against the title Deed relating to the immovable property. A Usufruct is not transferrable and cannot be sold or bequeathed to another person.
On the death of the Usufructuary (for a lifetime usufruct); or expiry of the Usufruct term the property is restored to the bare dominium owner who would then have full control over the property.
A usufruct can be granted unilaterally by a testator in a will; bilaterally by agreement between parties intending to get married set out in a Registered Antenuptial Contract; or it can be retained by a Seller of a property when selling a property – this may reduce estate duty or transfer duty.
Many testators consider leaving a usufruct over their immovable property to a spouse or to a second spouse that they may have married later in life. A testator may consider making a usufruct bequest to ensure that a dependent person living with them would not be left destitute; or to ensure that their spouse remains in control of their immovable property; and that they would enjoy the benefits of the property. It may be thought by the testator that the granting of a usufruct would reduce the possibility of family squabbles between a new spouse and children from a previous marriage. It is however a reality that where there are already strained family relationships, a lifelong usufruct may create unpleasant hardships and family disagreements which could continue for many years. Several considerations should be taken into account when considering bequeathing a usufruct, as the granting of a Usufruct could be a huge financial burden on the actual heirs to an estate and even on the person to whom the Usufruct is being granted.
A testator leaves his immovable property to his son, subject to the Usufruct of his wife. In so doing the son would become the registered owner of the bare dominium of the property and the wife becomes the Usufructuary holder. Although the son becomes the registered owner of the bare dominium he cannot do anything to infringe on the wife’s rights, he would not be able to use or benefit from the property until the wife dies. The wife as Usufructuary holder has :
>When used in the right circumstances a Usufruct does create certainty and could be beneficial to the Usufructuary holder; it protects their rights to use and benefit from a property and ensures that loved ones and surviving spouse have a roof over their head for the remainder of their life./p>
Email lawyer@capetownlawyer.co.za & request your property attorney to set up a usufruct agreement for you and yours.
Sellers of property & buyers, speak to a property lawyer before you hire an estate agent!
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