Usufruct is a concept originating from Roman Law and is a prominent feature within our civil legal system, particularly prevalent in Malta due to its extensive utilization. It grants the real rights of jus utendi and jus fruendi with the exclusion of ownership. The exclusion of nuda proprietas brings about the notion of a personal servitude due to a personal relationship between the owner and the third party, usufructuary.
The notion of usufruct imposes a fundamental obligation of salva rerum substantia on the usufructuary, which signifies that the object of the usufruct must remain the same in the substance relating to manner and form. In the case ‘Diacono proprio et nomine vs. Degiorgio Lowe’ the Court deemed a change in the use of the premises from residential to a commercial one to be a violation of the salva rerum substantia[1]. When the usufruct related to fungibles and the object is consumed by use, and equivalent in the same amount or value is returned.
The real rights of use and enjoyment extend to habitation. By virtue of use and enjoyment, the usufructuary is able to take fruits of the object or interest thereof. When the usufruct estate is able to yield fruits, the usufructuary is also bound to contribute to the charges relating to cultivation. Use and habitation refers to the right to live in a dwelling house, which also extends to one’s family.
When the usufructuary is making use of the usufruct estate, he is bound to make such use in a bonus paterfamilias. He shall be liable to the deterioration and damages which occurred by virtue of the usufructuary’s fault or negligence.
A usufruct may be created either by law or by act of man. By law refers to the instances which provisions in the law cater for the autonomous creation of a usufruct, example a parent’s rights over their children’s property. Contract and will are provided for by act of man. Usufruct can be constituted either conditionally or for a period of time. In order to commence a usufruct an inventory has to be drawn up by a notary and in the presence of the owner and the usufructuary has to provide security.
A usufruct may be sold by the usufructuary; however, he cannot assign more rights than the principal usufructs provide. Such assignment shall not affect the owner’s rights and obligations. Moreover, any improvements made to the usufruct estate by a usufructuary deem no reimbursement from the owner. Moreover, a usufructuary is not entitled to request the owner to improve the usufruct estate.
The owner has the obligation to carry out extraordinary repairs, whilst the usufructuary has the obligation to carry out ordinary repairs and maintenance. When the owner refuses to carry out extraordinary repairs, the usufructuary may seek court authorisation to carry out the extraordinary repairs and seek reimbursement from the owner. Nonetheless, the owner shall have the right of choice and the usufructuary has no direct action in relation to extraordinary repairs.
In the circumstance where the usufruct estate suffers encroachment of third parties, the usufructuary shall inform the owner in immediate effect, failure to do so shall impose damages. Litigation costs relating to the usufruct are borne by the usufructuary whilst, litigation costs relating to the ownership are borne by the owner.
A usufruct may be terminated through either of the following grounds:
If the usufructuary damages, neglects, or abandons the usufruct estate, the owner is entitled to exercise an action demanding dissolution of the usufruct.
For more information or assistance regarding Usufruct please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Joseph Diacono proprio et nomine vs. Hilda Degiorgio Lowe, Court of Appeal, 13 December 1972.