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Usufruct () is a limited
real right Ius in re, or jus in re, under civil law, more commonly referred to as a real right or right '' in rem'', is a right in property, known as an interest under common law. A real right vests in a person with respect to property, inherent in his relati ...
(or ''in rem'' right) found in civil-law and mixed jurisdictions that unites the two property interests of ''usus'' and ''fructus'': * ''Usus'' (''use'') is the right to use or enjoy a thing possessed, directly and without altering it. * '' Fructus'' (''fruit'', in a figurative sense) is the right to derive profit from a thing possessed: for instance, by selling crops, leasing immovables or annexed movables, taxing for entry, and so on. A usufruct is either granted in severalty or held in
common ownership Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property. Forms of common ownership exist in every economi ...
, as long as the property is not damaged or destroyed. The third civilian property interest is ''abusus'' (literally ''abuse''), the right to alienate the thing possessed, either by consuming or destroying it (e.g., for profit), or by transferring it to someone else (e.g., sale,
exchange Exchange may refer to: Physics *Gas exchange is the movement of oxygen and carbon dioxide molecules from a region of higher concentration to a region of lower concentration. Places United States * Exchange, Indiana, an unincorporated community * ...
,
gift A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...
). Someone enjoying all three rights has full
ownership Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as title, which may be separated and held by different ...
. Generally, a usufruct is a system in which a person or group of persons uses the real property (often land) of another. The "usufructuary" does not own the property, but does have an interest in it, which is sanctioned or contractually allowed by the owner. Two different systems of usufruct exist: perfect and imperfect. In a perfect usufruct, the usufructuary is entitled the use of the property but cannot substantially change it. For example, an owner of a small business may become ill and grant the right of usufruct to an individual to run their business. The usufructuary thus has the right to operate the business and gain income from it, but does not have the right to, for example, tear down the business and replace it, or to sell it. The imperfect usufruct system gives the usufructuary some ability to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agricultural use, the usufructuary may have the right to not only grow crops on the land but also make improvements that would help in farming, say by building a barn. However this can be disadvantageous to the usufructuary: if a usufructuary makes material improvements such as a building, or fixtures attached to the building, or other fixed structures to their usufruct, they do not own the improvements, and any money spent on those improvements would belong to the original owner at the end of the usufruct. In many usufructuary property systems, such as the traditional ''
ejido An ''ejido'' (, from Latin ''exitum'') is an area of communal land used for agriculture in which community members have usufruct rights rather than ownership rights to land, which in Mexico is held by the Mexican state. People awarded ejidos i ...
'' system in
Mexico Mexico (Spanish: México), officially the United Mexican States, is a country in the southern portion of North America. It is bordered to the north by the United States; to the south and west by the Pacific Ocean; to the southeast by Gua ...
, individuals or groups may only acquire the usufruct of the property, not legal ownership. A usufruct is directly equatable to a
common-law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
life estate except that a usufruct can be granted for a term shorter than the holder's lifetime.


History

Usufruct comes from civil law, under which it is a subordinate
real right Ius in re, or jus in re, under civil law, more commonly referred to as a real right or right '' in rem'', is a right in property, known as an interest under common law. A real right vests in a person with respect to property, inherent in his relati ...
(''ius in re aliena'') of limited duration, usually for a person's lifetime. The holder of a usufruct, known as a usufructuary, has the right to use (''usus'') the property and enjoy its fruits (''fructus''). In modern terms, ''fructus'' more or less corresponds to the profit one may make, as when selling the "fruits" (in both literal and figurative senses) of the land or leasing a house. ''Fruits'' refers to any
renewable A renewable resource, also known as a flow resource, is a natural resource which will replenish to replace the portion depleted by usage and consumption, either through natural reproduction or other recurring processes in a finite amount of ti ...
commodity on the property, including (among others) actual fruits, livestock and even rental payments derived from the property. These may be divided into civil (''fructus civiles''), industrial (''fructus industriales''), and natural fruits (''fructus naturales''), the latter of which, in Roman law, included
slaves Slavery and enslavement are both the state and the condition of being a slave—someone forbidden to quit one's service for an enslaver, and who is treated by the enslaver as property. Slavery typically involves slaves being made to per ...
and
livestock Livestock are the domesticated animals raised in an agricultural setting to provide labor and produce diversified products for consumption such as meat, eggs, milk, fur, leather, and wool. The term is sometimes used to refer solely to animals w ...
. Under Roman law, usufruct was a type of personal servitude (''servitutes personarum''), a beneficial right in another's property. The usufructuary never had
possession Possession may refer to: Law *Dependent territory, an area of land over which another country exercises sovereignty, but which does not have the full right of participation in that country's governance *Drug possession, a crime *Ownership *Per ...
of this property (on the basis that if he possessed at all, he did so through the owner), but he did have an interest in the property itself for a period, either a term of years, or a lifetime. Unlike the owner, the usufructuary did not have a right of alienation (''abusus''), but he could sell or lease his usufructuary interest. Even though a usufructuary did not have possessory title, he could sue for relief in the form of a modified possessory interdict (prohibiting order). In some
indigenous cultures Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
, usufruct means the land is owned in common by the people, but families and individuals have the right to use certain plots of land. Land is considered village or communal land rather than owned by individual people. While people can take fruits of the land, they may not sell or abuse it in ways that stop future use of the land by the community. Ancient examples of usufruct are found in the
Code of Hammurabi The Code of Hammurabi is a Babylonian legal text composed 1755–1750 BC. It is the longest, best-organised, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian, purportedly by Ham ...
and the
Law of Moses The Law of Moses ( he, תֹּורַת מֹשֶׁה ), also called the Mosaic Law, primarily refers to the Torah or the first five books of the Hebrew Bible. The law revealed to Moses by God. Terminology The Law of Moses or Torah of Moses (Hebre ...
. The Law of Moses directed property owners not to harvest the edges of their fields, and reserved the gleanings for the poor.
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He was previously the natio ...
famously wrote in 1789 that "Earth belongs in usufruct to the living." Jefferson's
metaphor A metaphor is a figure of speech that, for rhetorical effect, directly refers to one thing by mentioning another. It may provide (or obscure) clarity or identify hidden similarities between two different ideas. Metaphors are often compared wit ...
means that, like a usufructuary, human beings have the right to use the earth for their own benefit and derive profit from it, but only to the extent that their actions do not impoverish the earth's bounty for future generations. It was, in other words, an expression both of rights (of the living) and obligations (of the living to those yet to be born). Jefferson's use of the word "living" is critical here: he meant that the usufructuaries of the world are those who are alive, not deceased past generations. This idea would profoundly influence Jefferson over the course of his life, and would lead to his acknowledgement that the Constitution of the United States would be revised by future generations, and was part of the reason that the Constitution includes a provision for its own amendment.


Local variations


France

In France usufruct applies in inheritances. Under French law an indefeasible portion known as the ''forced estate'' passes to the deceased's surviving spouse and
issue Issue or issues may refer to: Publishing * ''Issue'' (company), a mobile publishing company * ''Issue'' (magazine), a monthly Korean comics anthology magazine * Issue (postal service), a stamp or a series of stamps released to the public * '' ...
(with shares apportioned according to the number of children), with the rest of the estate – the ''free estate'' – free to dispose of by
will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and w ...
. However, the surviving spouse may elect to distribute the forced estate as is, or convert it into a usufruct, or break up the estate into a distributable portion and a usufruct good for the children's lifetime. If a usufruct is chosen, a value is set for the usufruct interest for inheritance tax purposes and payable by the surviving spouse, on a sliding scale according to his/her age. The value of furniture and household items is calculated using a standard formula based on the appraised value of the estate's liquid and non-liquid assets, then the usufruct's value to the surviving spouse is subtracted, and finally the remaining balance is divided among the children on the death of the surviving spouse. This simplifies handling household items since the surviving spouse is free to maintain, replace or dispose of them as he/she wishes during his/her lifetime, with the monetary value of the items going to the children. Title to assets does not pass, and the usufruct disappears on death or at the end of a term of years. A usufruct is distinct from a trust or similar settlement. French law breaks with Roman law by construing a usufruct as ''not'' a servitude but rather a possessory interest.


United States


Louisiana

Although the United States is for the most part a common law jurisdiction recognizing life estate instead of usufruct,
Louisiana Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is border ...
is a civil-law jurisdiction, specifically following the French and Spanish models. In Louisiana, usufructs generally are created in a manner similar to other real rights, by
gift A gift or a present is an item given to someone without the expectation of payment or anything in return. An item is not a gift if that item is already owned by the one to whom it is given. Although gift-giving might involve an expectation ...
("donation"),
will Will may refer to: Common meanings * Will and testament, instructions for the disposition of one's property after death * Will (philosophy), or willpower * Will (sociology) * Will, volition (psychology) * Will, a modal verb - see Shall and w ...
("testament"), or operation of law. Nevertheless, they are typically granted ''cestui que vie''. Unless otherwise provided in a will, a person's share of community property accedes to descendants as bare title holders ("naked owners"); nevertheless, if that person has a living spouse, the latter will receive a usufruct in that portion of the estate until death or remarriage (La. Civil Code art. 890). Under certain other conditions, a usufruct may arise giving rights to that person's parents.


Georgia

While
Georgia Georgia most commonly refers to: * Georgia (country), a country in the Caucasus region of Eurasia * Georgia (U.S. state), a state in the Southeast United States Georgia may also refer to: Places Historical states and entities * Related to th ...
does not share Louisiana's civil law history, Georgia General Assembly statutorily created usufructs. In Georgia, a usufruct is "rights or privileges usually arising out of landlord and tenant relationships, and with privileges granted to tenants holding less interest in real estate than estate for years". Under Georgia law, if a landowner grants a lease for fewer than five years, the lease agreement is a usufruct, and the landowner retains the estate. Additionally, Georgia courts consider as a usufruct any relationship between a landowner and a lessee where the restrictions are "so pervasive as to be fundamentally inconsistent with the concept of an estate for years", or the landowner retains "dominion and control" over the business operating on the property.


Philippines

Philippine law relating to usufruct is set forth primarily in Title VI of the Philippine Civil Code.


Thailand

In Thailand the Commercial and Civil Code is based on the European civil code and recognizes the notion of usufruct at clauses 1417 to 1428. The usufruct can be done for lifetime or a maximum of 30 years according to the law. It needs to be registered at the local land department to have full effect on third parties, on title deed Nor Sor Sam or higher.


Scotland

A liferent, by which a usufruct is known in
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irelan ...
, is the right to receive for life the benefits of a property or other asset, without the right to dispose of the property or asset. An individual who enjoys this right is called a liferenter. The owner of a property burdened by a usufruct is called the fiar and right of ownership is known as the fee.


Cuba

Usufruct has been revived as part of the agricultural change associated with Cuba's
Special Period The Special Period ( es, Período especial, link=no), officially the Special Period in the Time of Peace (), was an extended period of economic crisis in Cuba that began in 1991 primarily due to the dissolution of the Soviet Union and, by exten ...
. As a legacy of sanctions and a struggling economy, Cuba had accumulated many crumbling buildings that could not be repaired. These were torn down and the empty lots lay idle for years until the food shortages forced Cuban citizens to make use of every piece of land. Initially, this was an ad-hoc process where ordinary Cubans took the initiative to grow their own food in whatever piece of land was available. Tenure but not ownership was formalised with a legal framework using usufruct to give farmers rights on a profit-sharing basis to the products produced from the land, but not ownership rights to the land itself.


Social Ecology

Usufruct is a central concept in social ecology.
Murray Bookchin Murray Bookchin (January 14, 1921 – July 30, 2006) was an American social theorist, author, orator, historian, and political philosopher. A pioneer in the environmental movement, Bookchin formulated and developed the theory of soci ...
defines usufruct informally as
The freedom of individuals in a community to appropriate resources merely by virtue of the fact that they are using them
Bookchin contrasts Usufruct with other property relations, saying:
Usufruct, in short, differs qualitatively from the quid pro quo of reciprocity, exchange, and mutual aid — all of which are trapped within history's demeaning account books with their "just" ratios and their "honest" balance sheets.
He pairs the concept of usufruct with complementarity and the irreducible minimum as core to his ethical world view.
What "civilization" has given us, in spite of itself, is the recognition that the ancient values of usufruct, complementarity, and the irreducible minimum must be extended from the kin group to humanity as a whole.


See also

* '' Cestui que'' *
Classical liberalism Classical liberalism is a political tradition and a branch of liberalism that advocates free market and laissez-faire economics; civil liberties under the rule of law with especial emphasis on individual autonomy, limited government, econo ...
*
Common ownership Common ownership refers to holding the assets of an organization, enterprise or community indivisibly rather than in the names of the individual members or groups of members as common property. Forms of common ownership exist in every economi ...
*
Dominium means "dominion; control; ownership". It is used in some phrases and maxims in legal Latin: * Dominium directum – Direct ownership, that is control of the property, but not necessarily with right to its utilization or alienation. For example, ...
* Dower *
Easement An easement is a nonpossessory right to use and/or enter onto the real property of another without possessing it. It is "best typified in the right of way which one landowner, A, may enjoy over the land of another, B". An easement is a propert ...
*
Fee simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., per ...
* Four Fs (legal) * Freedom to roam *
Freehold (law) In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leaseho ...
* Geolibertarianism * Georgism * Leasehold * Minnesota v. Mille Lacs Band of Chippewa Indians *
Mutualism (economic theory) Mutualism is an anarchist school of thought and economic theory that advocates a socialist society based on free markets and usufructs, i.e. occupation and use property norms. One implementation of this system involves the establishment of a ...
* Perpetual usufruct *
Profit (real property) A profit (short for ''profit-à-prendre'' in Middle French for "advantage or benefit for the taking"), in the law of real property, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to ...
* Right-of-way (railroad) *
Rights of way in England and Wales In England and Wales, other than in the 12 Inner London boroughs and the City of London, the right of way is a legally protected right of the public to pass and re-pass on specific paths. The law in England and Wales differs from Scots law in ...
*
Squatting Squatting is the action of occupying an abandoned or unoccupied area of land or a building, usually residential, that the squatter does not own, rent or otherwise have lawful permission to use. The United Nations estimated in 2003 that there ...
*
Trover Trover () is a form of lawsuit in common-law countries for recovery of damages for wrongful taking of personal property. Trover belongs to a series of remedies for such wrongful taking, its distinctive feature being recovery only for the value ...


References

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