USUFRUCT IN SPAIN FOR REAL ESTATE AND PROPERTIES

“Usufruct” in a property ownership is the right to use and benefit from a Property not being the owner. It is like being the tenants but not paying any rent.

So, the owners of the property are different people from the user. This kind of owners is named “Nude owners”.

The “Nude or Bare owners” are those who have the ownership of the property. But they cannot “use” the property, nor to “live” at the property, nor to “rent” the property, as this right is given expressly to the “usufructers”. In fact, the Nude owners may have not right to “access” to the property if the usufructairies do not allow them to.

The “usufructuaries” are those who have the right to “live”, “rent” and “use” the property, and even block the access to the “nude owners”, in case they wished to.

Let us explaining you better this concept in the following way:

The legal “ownership” right on a property is composed by a group of legal rights like:

To limit the Property (for example, with a right of way)
To use the Property as guaranty of a debt (a mortgage, for example)
To rent the Property
To use and benefit from the Property

1.- Constitution of the Spanish usufruct

Form

The usufruct can be constituted in the following ways:

By virtue of a legal provision . Currently the only case of legal usufruct at the state level is that recognized in favor of the widowed spouse.
By legal transaction , which in turn can be established by cause of death (testamentary usufruct) or inter vivos, whether gratuitous or onerous (donation, for example) . In turn, the inter vivos constitution can be done

Ability

No special capacity is required to acquire usufruct . However, if the owner is a legal entity, the maximum duration of the usufruct is 30 years. If the legal entity is extinguished before that date, the usufruct also expires.

To establish the right of usufruct it is necessary to have the power to dispose of the usufruct object.

Simultaneous usufruct

In the event that the usufruct has been established simultaneously in favor of several people, the following rules apply:

The usufruct is governed by the rules of the community of property
The extinction of the usufruct established in favor of several people alive at the time of its constitution occurs with the death of the last one who survives.
In the case of testamentary usufruct , the right to increase among the usufructuaries is regulated in the terms established for the heirs ( CC art.987 and 982.1 ): the right to increase takes place when two or more people are called to the same inheritance or portion thereof without special designation of parties and one of those called dies before the testator or renounces the inheritance or is incapable of receiving it.
If the usufruct has been established by donation , there is no right to increase unless the donor wishes otherwise. An exception is made in the case in which the donation has been made jointly to husband and wife, in which there is a right to increase, unless the donor has provided otherwise .

Successive usufruct

It takes place when the usufruct is established in favor of several people who succeed one another over time. In this case there is not a single usufruct, but several, each of which begins when the previous one ends.

If the title of constitution is testamentary and several people are successively called, the usufruct only takes effect as long as it does not exceed the second degree or when it is made in favor of people who are alive at the time of the testator’s death.

The rights and obligations of the usufructuary are those determined by the title constituting the usufruct and, failing that, those established by the Civil Code, which we explain in the following sections.

A distinction can be made between obligations prior to the constitution of the usufruct, simultaneous with it, and final obligations.

Obligations prior to the constitution of usufruct

They are the following:

To make an inventory . In order to protect the interests of the person who is to receive the thing when the usufruct expires, the usufructuary is required to prepare an inventory and provide security. The inventory must be carried out with a summons from the owner or his legitimate representative, having the furniture appraised and describing the properties. Since no specific form is required, it can be done in a public or private document.
To pay a deposit as guaranty . Its purpose is to ensure compliance with the obligations of the usufructuary. The bond can be personal or real and, in any case, it must be sufficient to ensure compliance with said obligations.

The seller or donor who has reserved the usufruct of the property sold or donated and the widowed spouse with respect to the usufructuary quota granted by the Law are exempt from the obligation to provide this guaranty, unless they contract a subsequent marriage .

Both the obligation to inventory and the obligation to provide guaranty can be waived , regardless of the type of usufruct, as long as no harm results to anyone. The dispensation can come either from the bare owner or from the judicial authority, at the request of the usufructuary. The dispensation made by the testator in his will is also possible. For the dispensation to occur, an express statement is required.

Breach

In the event that the usufructuary fails to comply with the obligation to prepare an inventory or provide security, the following consequences are established:

The bare owner may deprive the usufructuary of entering into possession of the property, and may demand that the properties be placed under administration, that the furniture be sold, that public effects or nominative or bearer credit titles be converted into registrations of ownership. the public debt or are deposited in banks or public establishments, and that the capital or sums in cash and the sale price of the movable property are invested in safe securities. The interests and products of the assets placed under administration belong to the usufructuary.
The bare owner may also retain the assets as administrator, with the obligation to deliver the liquid product to the usufructuary, deducting the sum that is agreed or judicially determined for this administration.
In the case of movable property , the owner who does not want it to be sold for its artistic merit or because it has a low price may demand that it be delivered to him, guaranteeing payment of the legal interest on its appraised value.
However, the usufructuary is allowed, even if he has not provided security and under simple sworn security, to request that the furniture necessary for his use be delivered, that he be assigned a room for himself and his family in a house integrated into the usufruct, and the instruments, tools and other movable property necessary for the industry in which it is dedicated, the judge deciding in view of the specific circumstances of the case.
Once the deposit has been provided, the usufructuary has the right to receive all the products from the day on which, in accordance with the title constituting the usufruct, he should have begun to receive them, which means that compliance with the obligation to provide deposit has retroactive effects.

Obligations during the possession of the assets

The usufructuary is obliged to:

Preserve the form and substance of the proeprty, unless the Law or the constitutive title authorizes otherwise.
Inform the owner of the following facts:
- The need to make urgent repairs that are the responsibility of the owner.
- Any act of a third party of which you are aware, which is capable of violating property rights. If you do not do so, you must be liable for the damages as if they had been caused by your fault.
Take care of the usufruct assets like a good father of a family. If, in compliance with this obligation, the goods naturally deteriorate due to use, the bare owner cannot claim anything from the usufructuary. If, on the contrary, this obligation is breached and considerable damage is caused to the owner, the owner may request that the thing be delivered to him, obligating himself to pay the usufructuary annually the liquid product of the same, after deducting the expenses and the prize. that is assigned by its administration. In any case, the usufructuary is liable to the bare owner for any damage suffered, through fraud or negligence, to the things that are the object of the usufruct.
Carry out theordinary repairs of the thing, the owner may require him to fulfill this obligation, and if he does not comply with the request, he may make them at the expense of the usufructuary. The usufructuary must pay interest corresponding to the sums that the owner has disbursed to make repairs or pay contributions at the expense of the owner. Extraordinary repairs are the responsibility of the bare owner, and the usufructuary must notify him when the need to do them is urgent.
Pay the annual charges and contributions and that of those considered encumbrances of the fruits. The bare owner is responsible for paying those that are imposed directly on the capital.
Payexpenses, costs and sentences of the lawsuits sustained over the usufruct.

Obligations upon termination of the usufruct

Once the usufruct has ended, the usufructuary must deliver possession of the usufruct to the owner.

2.- Rights of the usufructuary

The rights of the usufructuary are those determined by the constitutive title and, failing that or due to its insufficiency, those established by the Civil Code.

Use the property

The usufructuary has the right to use the usufruct of the property, obtaining direct and immediate possession.

As soon as the right of usufruct arises, the usufructuary acquires the right to possession and enjoyment of the usufructuary property.

Perception of fruits/income

The usufructuary is recognized as having the right to receive the fruits/ rentae , whether natural, industrial or civil .

The natural and industrial fruits that are pending at the time the usufruct begins belong to the usufructuary, without the obligation to pay any expenses to the owner. If they are pending at the end of the usufruct, you make them yours, but paying the expenses to the owner.

Civil fruits are understood to be received per day, and belong to the usufructuary in proportion to the time that the usufruct lasts. If the usufructuary has leased the lands given in usufruct and this ends before the lease, he only receives the proportional part of the rent that the lessee must pay.

In the usufruct of the right to receive an income or a periodic pension, either in cash or in fruits, each maturity is considered as fruits of that right.
In the usufruct over obligations or bearer titles that produce interest, each maturity is considered the fruit of those rights.
If the usufruct consists of the enjoyment of the benefits of a participation in a commercial or industrial exploitation whose distribution does not have a fixed maturity, the benefits are considered fruits.

Right to rent the property

The usufructuary may lease the usufructuary thing to another, but all contracts entered into as such usufructuary are terminated at the end of the usufruct.

The housing leases arranged by the usufructuary are extinguished at the end of the usufruct ( LAU art.13.2 ). Leases for use other than housing are governed at this point by the provisions of the Civil Code, unless the parties agree otherwise.

On the other hand, when the usufruct expires, the lease of rural properties is considered subsisting during the agricultural year. Furthermore, these contracts may subsist during the time stipulated in the contract, even after the extinction of the right of the usufructuary, if the owner had attended its granting. The subsistence of the contract during the agricultural year, which is mandatory, does not constitute a new lease .

Disposal faculties

Usufruct is an alienable and mortgageable real right.

The transfer can be made both for consideration and free of charge, with the transferee acquiring the usufruct under the same terms in which it was established. It should be noted that:

The life-long character that usufruct normally has makes it depend on the life of the assignor , and not on that of the assignee.
The usufructuary must be responsible for the damage suffered by the usufructuary things due to the fault or negligence of the person who replaces him, with which the transferor becomes a guarantor for the transferee.

As regards the mortgage , it is extinguished whenever the usufruct ends due to an event beyond the control of the usufructuary ( eg due to his death). If it were at his will ( for example , by renunciation), the extinction does not harm the mortgagee, so that the mortgage subsists on the usufruct until the guaranteed obligation is fulfilled or the time expires in which the usufruct would normally have ended if there were no intervention. the fact that put an end to it.

CONCLUSIONS

Mainly, there are 2 types of usufructs:

“Temporary” or ” Conditioned”: When the use of the Property has a deadline on time or is conditioned.
For life: When the use of the Property is for the life time of the user.

Usufruct comes from the Roman Laws and it’s quite common in inheritance process and family law in European continental countries like Spain, France, Portugal, Germany, etc.

In inheritance process, is quite common from the testator to leave the usufruct of the permanent home to the surviving spouse, leaving the rest of the Property ownership to the children (Nude ownership). In this way, the deceased part makes sure that the surviving spouse will have a place for living in spite of eventual conflicts with the children.

Also, the usufruct has been widely used in property transactions in Spain, with the aim to avoid, or to reduce, Spanish inheritance tax. It is quite common from parents to buy the Property on the name of the children, keeping the right usufruct for their selves. In this way, if the buyers only buy the “usufruct” and the children acquire the “nude ownership”, in case of death of the parents, the children would have to pay only the inheritance tax for the value of the “usufruct”, as they are already the owners of the rest.

Let us explaining this to you with an example, if the Property Price is 200.000 EUR and the parents kept the usufruct valuated in 50.000 EUR, and the children acquired the ownership of the rest (150.000 EUR), then, in case of death of the parents, the inheritance process will be only for the 50.000 EUR. Obviously, this action reduces significantly the inheritance tax.

But, this system must be studied carefully due to recent interpretations of laws, because, the decision of the parents to translate the “nude ownership” to the children, can be considered as a “Donation” and then paying taxes as an action of “Donation”. And “Donation taxes” may be in Spain even higher than “Inheritance Tax”. A way to avoid this would be the children paying by their own and from their own sources the price of the “nude ownership”. But, due to the fact that this is a very delicate point with important tax implications, it is highly recommendable to take legal advice prior to take these decisions on Usufruct.

WHAT IS THE VALUE OF THE USUFRUCT? – How can we calculate the value of the Usufruct?

The value of the usufruct is calculated in the following way: You need to make the following calculation: REST to number “89” the age of the user (if there are 2 users, the age is the one of the youngest), with a minimum of 10 %.

For example:

EXAMPLE 1: Acquisition of the Usufruct on the purchase process:

“A”+”B” have two children (“1″and “2”). “A” is 69 a “B” is 72. They have both decided to buy a house in Spain, for a price of 200.000 EUR. In the process of acquisition, so before completing the sale, and with the aim to reducing inheritance taxes in the future, they instruct to their solicitor that they want to keep the usufruct and leave the rest of the ownership rights to their children.

Value of the usufruct: 89 – 69 = 20.

20 is the % from the total price of the property, with the following formula:

200.000 * 20 % = 40.000 EUR. This is the usufruct value of the property and the “amount” of price that A+B would be responsible for.

In the same way, the children keep the rest of the property rights valuated in 160.000 EUR.

Following this example, if A+B die, then, children will receive the 40.000 EUR automatically, consolidating the 100 % of the ownership, and paying taxes only on the 40.000 EUR.

As 1+2 got the ownership rights on a “Purchase process”, then they will pay “Purchase or Transfer Tax” for the value of the ownership. So, they will not pay “inheritance tax” but “transfer tax”.

EXAMPLE 2.- Acquisition of the Usufruct via testament/inheritance:

In the previous example, A+B bought the Spanish property 100 % by their own. They keep the property all their lives on their names only, and they decide to pass it to the children via inheritance.

In this way, A+B make Spanish Wills and indicate the following:

If “A” dies, the A part of the property will be distributed the following way:
- “B” receives the usufruct of the “A” part of the house
- The children receive the rest of the ownership right of the property (“Nude ownership”)
If “B” dies, the same.

In this case, taking the example that “A” dies, the usufruct from its part will be transferred to “B” and the nude ownership will be transferred to the children. And this will be done executing the last “A” Will in a Spanish inheritance process.

Later on, when “B“ dies, 1+2 will receive the usufruct of the property via also inheritance.

In this example, as 1+2 were receiving the usufruct via inheritance, then, they will not pay “transfer tax” for this acquisition. They will pay “inheritance tax” for a value of the usufruct of 40.000 EUR.