Usufructs, habitatio and usus are what we call personal servitudes. A personal servitude is always created in favour of an individual, or individuals, to whom it gives the right to the use and enjoyment of another person’s property.
In estate planning and administration, we often come across personal servitudes created in terms of Last Wills and Testaments. However, these can also be created by agreement between parties.
A few characteristics of personal servitudes includes: –
- Created in favour of a certain individual/s.
- Gives rights to use and enjoy property owned by another person.
- It is enforceable against the owner (to the extent to which it may be limited by its grantor).
- It is not transferrable by the holder of the servitude, in other words, the holder cannot give it to another person.
- Has a fixed term or endures until the occurrence of a future event, or for the lifetime of the holder.
- Constituted by a Last Will & Testament or by agreement.
- It confers limited right.
- It is a fiduciary asset in the deceased person’s estate.
A usufruct is a personal servitude that entitles a person (the holder) to have the use and enjoyment of another person’s property and to take its fruits without impairing the substance of the property.
An example of a testamentary bequest in a Will creating a usufruct is as follows: – “I bequeath my immovable property known as ERF 1234 Wonderland to my son Paul, subject thereto that my wife Mary shall enjoy the right to use and enjoyment of the property until her death or remarriage.” In the above example, a usufruct is created in favour of the surviving spouse although the property will be owned by the son Paul. Paul has a limited right in the property in that he will be unable to alienate the property until the usufruct ceases. The usufruct shall endure until Mary’s death or remarriage.
Generally, the usufruct holder (usufructuary), will have the following limitation and general duties: –
- Only entitled to use of property but does not acquire ownership.
- May not consume (e.g. sell) or destroy the property.
- Obliged to preserve its substance (fair wear and tear expected) and the property must be used for its intended purpose.
The usufructuary may also take, consume and/or alienate the fruits of the property and is entitled to all the products that the land produces and to all profits and revenues derived from the property. So, using the above example, Mary may sell for her own benefit, or keep to herself as her property, all the harvest emanating from all the crop on the property Wonderland, for as long as she enjoys the usufructuary rights conferred upon her in terms of her late husband’s Will.
A usufructuary has the duty to maintain the property with a degree of care and to defray costs of repairs necessary to keep it in good condition, fair wear and tear expected. The usufructuary is also responsible for the rates and taxes on the property during the subsistence of the usufruct but is not obliged to carry to cost of insurance premiums or improvements to the property.
Lastly, the owner of the property to whom usufructuary rights have been conferred, may not do anything to prejudice the holder’s rights. In other words, he must not do anything that hinders or diminishes the holder’s rights to the use and enjoyment of the property and to enjoy the fruits thereof. Any action by the owner of the property such as to sell or mortgage the property are invalid unless the consent of the usufructuary has been obtained.