A recurring doubt between brokers and owners concerns the enjoyment of real estate. This modality is used when a person wants to move a property to another, still in life. This avoids more complex procedures and conflicts such as inventory. In this way, whoever is making the donation can guarantee housing or income for someone else. The guarantee is that whoever donates the property cannot be evicted or that the property will not be sold without your authorization. Thus, usufruct is a guarantee of housing until death, for those who donated the property.
What is usufruct of property?
The usufruct of a property is a way of passing on a good in life. According to the law, the word usufruct determines “a right conferred to a citizen, for a predetermined time to enjoy or enjoy a property whose property belongs to another”. Thus, we can define it as a donation while still alive, where the owner, through notarized documents, determines a date on which a person will be called a nu-owner.
In a donation with a usufruct reservation, the person who donates the property maintains the right to enjoy the property. He becomes known as a usufructuary, having the right to live, rent or lease the property, for example. The nu-owner is the person who will have all rights over the property. These rights can be defined in clauses, or even described in the will. This last option avoids conflicts at the time of the inventory.
For the donation to be valid, it needs to meet some requirements. Thus, it must be done by free and spontaneous will, it has to add the patrimony and acceptance of those who will receive it, and it must respect the inheritance rights of its direct heirs. In addition, Brazilian law allows different types of donations:
- Pure and simple donation : it is the conventional donation, in which one donates without demanding anything in return;
- Modal or costly donation: here, something is required in exchange for the donation. Compensation is not necessarily required, but whoever receives the donation must fulfill some requirement;
- Compensation donation: in this modality, the donation is made as payment, as an award;
- Conditional donation: for this donation, the ownership of the property is conditional on it becoming something. For example, the property is donated on condition that it becomes a museum.
How the usufruct of real estate works
Real estate can be enjoyed in two ways. The first is the donation while still alive through a deed of donation. It must be authenticated by a notary and can determine whether the usufruct begins or ends on a predetermined date. In addition, many opt for usufruct through their will to avoid conflicts with inventories.
It is worth remembering that like any real estate transaction, the enjoyment of real estate is also subject to fees and taxes. Thus, the ITCMD (Tax on Transfer Cause and Mortality and Donation) is charged on him. It is charged at the time of donation and the amount varies according to the table of the municipality where the property is located.
Another very important point concerns the limits imposed on the naked owner. This is because the one who receives the donation is only partially the owner of the property. Thus, he cannot evict the usufructuary in case of sale or rent. The usufructuary will also be the one who will receive the values in case of rental or sale.
However, if the usufructuary dies, the nu-owner becomes officially and fully owner of the property. Thus, he will receive the rent and will be able to sell the property. Furthermore, it is important to note that the donation cannot affect the 50% that are the rights of the direct heirs. This means that if you decide to donate your only property to someone in full, leaving nothing for your children, in the event of death, the donation may be challenged in court.
Questions and answers about usufruct of property
Can the property be sold?
As previously stated, the naked owner is a partial owner of the property. Thus, he cannot decide whether the property will be sold or rented. This decision rests with the usufructuary, who is the one who will receive the amounts in case of rental or sale.
Is there a time limit for the enjoyment or does it last forever?
The usufruct can be taken for a predetermined time. Thus, at the end of this period, the naked owner loses all rights to the property. This is because the contract had an expiration date and its clause becomes invalid at the end of the period.
In the event of the death of the naked owner, who is entitled to the property?
If the naked owner dies, the rights pass to his direct heirs. Thus, the children of those who received the donation become responsible for the property, respecting the usufruct rules determined in a notary or will.
Can a usufruct contract be canceled?
A real estate usufruct agreement can be revoked. For that, it is necessary to go to the registry office and undo the agreement. New fees will not be charged, but there are costs for acts at the registry office.
In addition, our Civil Code cites some reasons that can lead to the extinction of usufruct:
- Waiver or death of the usufructuary;
- Term of its duration;
- Extinction of the legal entity, in favor of whom the usufruct was constituted, or, if it lasts, for the period of thirty years from the date on which it began to exercise;
- Cessation of the reason for which it originates;
- Destruction of the thing, subject to the provisions of arts. 1,407, 1,408, 2nd part, and 1,409;
- Fault of the usufructuary, when it alienates, deteriorates, or lets the goods be ruined, not helping them with conservation repairs, or when, in the enjoyment of credit notes, it does not give the amounts received the application provided for in the sole paragraph of art. 1,395;
- By not using, or not enjoying, the thing that the usufruct falls on (arts. 1.390 and 1.399).
Are there any restrictions?
Here, we need to remember that the usufructuary must use the property, ensuring and preserving its conditions. He is also responsible for all fees and taxes. If you do not comply with your obligations, shares can be brought on account of these pending issues.
How much does it cost to enjoy real estate?
The value of the usufruct of real estate varies from municipality to municipality. Thus, you will only know how much the process costs when registering. If you only enjoy a property of capital smart city islamabad, it is likely that the notary will charge you for an act and the donation tax.
The usufruct of property
The usufruct of a property is a way of passing on an asset to someone, whether relative or not. He guarantees that whoever gives up the property can continue using it until the scheduled date or his death. Thus, the usufructuary cannot be evicted unless registration clauses are not complied with. Thus, judicial measures can be taken to resolve the situation.