QUESTION
I am a British citizen but have been living and resident in Spain for several years. I am considering investing my savings in a property which I do not intend living in or renting out but purely as an investment which my children can inherit after my death.
I have received an interesting offer from the owner of an apartment but he has told me that his mother holds usufruct rights on the property.
What does usufruct actually mean?
Is this gentleman entitled to sell the property to me without his mother’s authorisation?
ANSWER
By definition, usufruct or “life interest” refers to the right of a person (holder of the usufruct rights) to use and enjoy in its entirety an asset which is owned by another person (the bare owner) and assume the obligation to conserve and maintain the asset in its form and substance. However the law or title by which usufruct rights may be granted can modify the scope of this entitlement and therefore it should be stated at the outset that each individual case should be analysed separately.
Generally speaking, the bare owner, ie. the gentleman who in this case has offered to sell you a property, is unable to use and enjoy the asset personally, although he is free to exercise all of the remaining faculties available to owners. Thus in this instance, the owner is entitled to sell the property to you without the need to obtain the consent of his mother, provided that he does not alter the form and substance of the property or otherwise prejudice the value of the usufruct or rights of the holder of the life interest.
It is important to be aware that if you acquire the bare ownership of the dwelling, you will assume certain obligations such as carrying out any extraordinary repairs to the property which may be necessary in addition to being liable for the payment of any rates or direct charges levied on the property.
Similarly you would have to honour all of the rights and entitlements enjoyed by the holder of the life interest, such as the right to use and enjoy the property, rent it out to a third party, transfer the usufruct rights, carry out certain improvements to the property, etc.
In any event, should you decide to proceed with the purchase of a property which is subject to a usufruct agreement, we would recommend that you consult a specialist lawyer in this field who can advise you in detail about the rights and obligations encumbent upon the holder of a life interest, together with the rights and obligations which you could eventually assume as the bare owner of the property.
As indicated above, the legal framework concerning usufruct issues can vary the rights and obligations granted depending on the title by which the life interest is given and therefore a separate analysis would need to be made for each individual case.
