In the real estate market, usufruct represents a legal concept that can have a significant impact on the purchase and sale of a property. It is a complex but fundamental right that allows a person (the usufructuary) to use and enjoy someone else’s property, even though they are not the owner. This type of agreement is very common in Italy, both in family contexts, such as succession, and in patrimonial agreements between private individuals. Understanding how usufruct works is essential for anyone considering the purchase or sale of a property, as it can affect the value and management of the property.
In this article, we will explore what usufruct is, how it is constituted and what implications it has for real estate transactions.
What is usufruct?
The usufruct is a A right in rem that allows the usufructuary to use another person’s property and to benefit from it, even though he is not the owner. Ownership of the property remains in the hands of the bare owner, while the usufructuary has the right to inhabit it, rent it out or use the proceeds from the property. This type of right is governed by the Italian Civil Code, which defines its limits and modes of exercise.
For example, in a family context, it is common for a parent to transfer the bare ownership of a property to their children, while retaining the usufruct in order to continue to live in the house or enjoy the income. This tool makes it possible to plan the management of real estate assets without completely losing control over the property.
Rights and duties of the usufructuary
The usufructuary has the right to use the property as if he or she were the owner, but with certain limits imposed by law. Among the main rights are the right to inhabit the house, rent it out or use the income it may generate. However, the usufructuary may not sell or change the structure of the property without the consent of the bare owner.
On the other hand, there are also duties that the usufructuary must fulfil. He or she is obliged to maintain the property in good condition, bearing the ordinary maintenance costs and the taxes linked to the use of the property, such as waste tax. Extraordinary expenses, on the other hand, are generally borne by the bare owner, unless otherwise stipulated in the contract.
Duration of usufruct
The duration of the usufruct is a key element determining its practical application. In general, the right of usufruct is temporary and cannot be perpetual. In the case of a natural person, the usufruct is automatically extinguished upon the death of the usufructuary, regardless of what is stipulated in the contract. When, on the other hand, the usufruct is in the name of a legal person, such as a company, its maximum duration is set by Italian law at 30 years.
It is important to bear in mind that the duration of the usufruct directly affects the value of the bare ownership. The longer the residual duration of the usufruct, the lower the immediate value of the bare ownership will be, since the bare owner will not be able to fully enjoy the property until the right expires. This is a key aspect to consider for anyone considering the purchase or sale of a property encumbered by usufruct.
How usufruct is constituted
The usufruct can be established in several ways, each of which has specific legal and practical implications. One of the most common ways is through a contract between the parties, which defines the rights and duties of the usufructuary and the bare owner. This type of agreement is often used in family or real estate transactions.
The usufruct may also be established by law, as is the case in some inheritance situations, or by will, where the deceased assigns the right of usufruct to a specific beneficiary. Finally, usufruct can be acquired by usucaption, a process that requires continuous and uncontested possession of the property for a specified period of time.
Each method of incorporation has different legal and administrative implications, and it is always advisable to seek the advice of a legal advisor or real estate expert to best navigate the complexities of this instrument.
Impact of usufruct on buying and selling real estate
The usufruct can have a significant impact on the purchase and sale of real estate, influencing both its value and the terms of sale.When a property is encumbered by usufruct, this means that the bare owner can sell the property, but the usufructuary retains the right to use the property until the expiry of the usufruct. This scenario may make the sale less attractive to some buyers, since the property is not immediately available for use or rent.
From an economic point of view, the value of the property with usufruct is reduced compared to an unencumbered property, since the buyer can only take full possession after the expiry of the right. The valuation of bare ownership depends on the remaining duration of the usufruct, often calculated using official tables. However, in some cases, the presence of a usufruct may represent an opportunity for investors interested in a long-term purchase at a reduced price.
Termination of usufruct
The usufruct is extinguished in several ways, the most common being the death of the usufructuary, in the case of natural persons. Another frequent case is the expiry of the term stipulated in the contract, applicable especially when the usufructuary is a legal person. Other factors that may lead to termination include voluntary renunciation by the usufructuary, destruction or deterioration of the property that prevents its use, and so-called consolidation, i.e. when the bare owner acquires the usufructuary right, becoming full owner.
To ensure a smooth transition at the end of the usufruct, it is essential to maintain up-to-date documentation and to verify that all legal conditions are met.This process can be managed con l’assistenza di un notaio o di un consulente immobiliare esperto.
