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Usufruct and Servitudes: Understanding the differences and importance


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Usufruct and Servitudes: Understanding the differences and importance

SchoemanLaw Inc logo

2nd June 2023


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What is a Usufruct?  

Usufruct is a legal term that refers to the temporary right of one individual to use, enjoy and benefit from the property owned by another individual without changing its essential features or ownership. In other words, usufruct gives the holder of the right (usufructuary) the power to derive income from the property, enjoy its fruits and use it for a specified period, but without having the authority to change its fundamental character or dispose of it.? ?  


When does a Usufruct apply?  

A usufruct can be granted over any property, such as land, buildings, or movables, and can be established by a legal agreement, a will, or the law through marriage, for instance. The right can be granted to individuals or organisations and transferred or sold. The holder of a usufruct is responsible for ordinary repairs and maintenance of the property and can be held liable for damages caused by their actions. 


What is a Servitude? 

Servitudes are legal rights that allow one person to use or restrict the use of another person's property. They are created by an agreement between two parties or imposed by local laws and regulations. Servitudes can take different forms, such as: 

·Easements: Give someone else the right to use a part of the property for a specific purpose, such as to cross it to access another property or to run utility lines over it. 

·Rights of way: Allow someone else to cross the property on foot or by vehicle to access a different location. 

·Restrictive covenants: Limit the use of the property in a specific way, such as prohibiting certain activities or requiring the property to adhere to certain standards. 

·Encumbrances: These are legal claims or liens on the property for unpaid debts or obligations. 

Servitudes can be temporary or permanent and transferred or terminated with appropriate legal procedures. 

Importance of Usufruct and Servitudes 

Usufruct and servitudes are essential legal concepts in real estate transactions, as they provide flexibility and protection for the rights of property owners and users. For example, usufruct can be particularly useful in succession planning, where an individual can grant the right to use and enjoy their property to a family member or friend while retaining ownership, or in commercial leasing, where tenants can obtain the right to use and profit from a property for a particular time. 

On the other hand, servitudes allow individuals or organisations to use or restrict the use of the property for a specific purpose without necessarily owning it. For instance, easements can benefit landlocked properties by providing access to a public road or allowing utility companies to provide essential services to homes and businesses. Restrictive covenants can also protect the value and appearance of a neighbourhood by establishing standards for home construction and maintenance. 


In conclusion, usufruct and servitudes are critical legal tools that can facilitate real estate transactions, protect property rights and promote efficient land use. However, they are distinct concepts that should be carefully studied and negotiated by parties involved in property management, leasing or ownership. 

Written by Celesté Snyders, SchoemanLaw Inc  


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