By Tamaryn Campbell
What is a usufruct?
A usufruct is the right to possession, use and enjoyment of an asset which includes the right use the asset and take the fruits from the asset i.e rental income. A usufruct is generally created where an immovable property is transferred to an heir, who is known as the bare dominium owner, subject to the condition that a usufruct is registered in favour of a third party, known as the usufructuary. A common example would be where Mr A bequeaths his house to his son in his Will subject to a lifelong usufruct in favour of Mrs A (his surviving spouse) who is then the usufructuary.
A usufruct cannot be ceded/transferred and the usufructuary must restore the property to the bare dominium owner on termination of the usufruct.
A usufruct is a personal servitude and cannot be registered beyond the person’s lifetime in whose favour it has been created. They therefore can be created for the lifetime of the usufruct or for a fixed period. There may also be conditions created, which are stipulated in the will.
Factors to consider when deciding on creating a usufruct in your will:
A testator should always consider the usufructuary in making their decision to register a usufruct, as the usufructuary is responsible for the maintenance and upkeep of the property and if the usufructuary does not have the means to maintain the property this could pose a huge problem. It would be best to consider making provision for the maintenance, insurance and rates of the property in the will.
Creation of a personal servitude:
This is when two or more living people agree to create a usufruct which will be an endorsement on the Title Deed and which has to be registered in terms of a Notarial Deed.
Must a usufruct be registered or can it be verbal?
Generally, the usufruct is registered at the same time that the property is transferred. However, what happens if the usufruct was never registered and it was verbally agreed upon?
It would be best to consider the Extension of Security of Tenure Act. This legislation regulates certain rights of residence and restricts eviction if prescribed conditions are met. It would thus be best to determine if the person who has the right to the usufruct which was verbally agreed upon, to meet the Act’s definition of an occupier.
The Act states that “occupier” means “a person residing on land which belongs to another person, and who has or, on 4 February 1997 or thereafter, had consent or another right in law to do so.” There are certain exclusions to be considered.
If, in fact, the person does qualify as an occupier, his residence on the property in question can only be terminated in accordance with the provisions of section 8 under the Act.
It is advisable to register the usufruct to avoid any disputes in the future.
Cancellation / lapsing of a personal servitude:
Section 68(1) of the Deeds Registries Act deals with the lapsing of a personal servitude and Section 68(2) of the Act deals with the cancellation thereof. These applications are dealt with by the conveyancing attorneys.
