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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-05-09
A usufruct is a concept in our law, which allows one person the right to use and enjoy someone else's property including any fruit also known as "fructus" or benefit of that property, for example any rental income.

The holder of a usufruct is known as a usufructary. If the home is rented out, the usfructary will be entitled to the fruits of that income. The usufruct will also be required to look after the property in a way that preserves the property and not to misuse it. The usufruct lapses upon the death of the usufructary.

Usufructs can come into effect when a person is drawing up a will. For example it's not unusual for a couple to decide that when they die, they will bequeath their family home to their children, subject to a usufruct being granted to the survivor of them.

This means that upon the death of the first dying, the family home will be transferred to the children subject to the condition that the survivor will have the right to live in the home until his or her death and.

The children as owners of the property will be required to ensure that all major repairs and maintenance is attended to. In fact they have an obligation to ensure that the house is livable at all times.

A usufruct can also be created by way of a notarial deed being registered over a property. Obviously if the property is not freehold, the bondholder such as a bank will need to consent to the creation of the usufruct.

A couple who were previously in a romantic relationship for many years and who jointly owned immovable property, decided to register a usufruct. The woman whose health was deteriorating at the time decided to transfer her half share to the man, subject to a usufruct being registered in her favour.

Later, the woman brought an application against the man compelling him to do certain renovations on the property. The man refused, on the basis that the property was in a good state and said the expenses claimed were luxurious and not necessary.

After hearing all the evidence before it, the court rejected the woman's claim and held that the man was to ensure all necessary repairs were done to maintain the property. It also said that there was a requirement to keep the property in the same condition that it was at the time of the usufruct was registered not to enhance it thereafter.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.