Usufruct

Usufruct is the inalienable and absolute right unvererbliche that uses ( § 100 BGB) of a thing or of a right to draw ( usufruct of things, § 1030 BGB; usufruct of an inheritance, § 1089 BGB). The term is a calque of the Latin usus fructus, " use of the fruit, fruit enjoyment "; see the common in everyday term " beneficiaries ". The most common form of usufruct is a lifelong right to live in an apartment or a house and move all uses of the property. Be distinguished from the right of residence, which only allows the occupancy / use of a building or parts of a building, but not the fruit draw.

In Switzerland the term usufruct is used for this legal institution. It is governed by Article 745 et seq of the Civil Code. In Austria, this right is called usufruct right and with § 509Vorlage: regulated § / Maintenance / RIS search ff Civil Code.

General definition

The ownership of a thing gives the owner essentially three rights: use, crop contraction and available. By the reasoning of the usufruct owner of a thing transfers the right to use and to draw fruit (Latin usus fructus, dt usufruct ) to a third party and retains only the right to dispose of its own. In this way, the legal dominion over a thing, so to speak, " split " and produced the legal concepts of " bare owner " (Latin nudus dominus, French nu propriétaire, Spanish nudo The proprietor, owner of nießbrauchbeschwerten property) and " usufructuary ". The former retains the " bare ownership " ( nuda proprietas, a form of nudum ius ) in the matter, their extensive use, including fruit drawing, however, is the beneficial owner ( "beneficial owner" ). The order of the usufruct regularly needed the services of a notary and registration in the land register.

In the following, the usufruct and its treatment in German law is presented.

Legal Content in Germany

Unlike the easement and the limited personal servitude of usufruct granted to the usufructuary, not only individual rights, but the right to make full use of the loaded object. This includes the contraction of " fruits " (§ 99 BGB ), ie the products and other yield of object: Property fruits are eg the harvest at an agricultural property or the mined stones a quarry, right fruits rental and rent receivables.

The usufruct is thus in rem, that is absolutely acting counterpart of the law of obligations lease: The claimant has not only a right to use overdraft against the other contracting party, but a right to use drawing to the charged object that acts against anyone. The usufructuary is therefore often referred to as a "beneficial owner" of the matter.

The usufruct is regularly inalienable and non-transferable (except § 1059a BGB). Its exercise may, however, be left to a third party ( § 1059 BGB). The usufruct is therefore also subject to attachment.

Order

The grant of the usufruct, so far as special rules are missing, to be made in the forms prescribed for disposal operations on each object:

• In immovable property (real estate, real estate) in accordance with § 873 BGB by agreement and registration in the land register;
• On movable property ( movables, chattels ) pursuant to § 1032 BGB basically through informal agreement and delivery of the thing ( with reference to rules governing the transfer of ownership of movables in sentence 2 of the provision );
• Of rights, to the extent transferable, pursuant to § 1069 of the Civil Code on the rules governing the transfer of the relevant law ( eg requirements: assignment );
• To holders and order papers: see § 1081 BGB;
• In an asset (eg in the estate, companies, etc. ) separately in accordance with § 1085 of the Civil Code in accordance with the rules applicable to each asset components regulations on each individual asset.

Exceptionally, may also arise by operation of law a usufruct.

The usufruct can also take in the entire property be ordered only on a co-ownership share ( fraction of usufruct ) or only to a portion of land usage are based (quota usufruct ). The usufructuary is being protected from impairments and disorders of his right as the owner.

The admissibility of a usufruct owner (ie the order of a usufruct on its own thing) is controversial; the Supreme Court provides for the appointment of a usufruct in its own grounds is admissible, as in preparation for a sale under usufruct reservation.

Like any available business is also the appointment of a usufruct without legal effect ( abstraction principle). However, there is then basically an enrichment legal restitution claim (§ § 812 ff BGB). To be durable ( kondiktionsfest ), the order is therefore regularly to be separated from her obligation transaction is based, that fills them ( purchase, gift, bequest, etc.).

Tax Treatment

In the tax assessment of a usufruct is to distinguish between Zuwendungs ​​and reserved usufruct:

Grant usufruct

When grant usufruct of his property owner ordered to a usufruct in favor of the claimant. In the future, achieved the usufructuary and no longer the owner income from rental and leasing, the property should be rented or leased to a third party. However, the usufructuary, in the case of the free gift usufruct due to the building fabric, no depreciation assert ( usufruct adoption TZ 18-22). Gift tax purposes the capitalized value of the usufruct is taxable to the recipient.

Reserved usufruct

A reserved usufruct occurs when a transmission, for example, a piece of land at the same time a right of usufruct for the previous owner of the transferred property is ordered. In a Mietwohngrundstück then continued to make the donor income from rental and leasing, even though the recipient is as the owner in the land register. The donor can deduct all expenses incurred by him land including the buildings depreciation as a business expense tax deductible. Does the reservation usufructuary the encumbered property to generate income from rental and leasing, then he is to the same extent as before as the owner to depreciation in accordance with § 9, paragraph 1, sentence 3 in conjunction with No.7 § 7 Income Tax Act authorized ( usufruct adoption TZ 41 ff.) As long as the usufruct is, the donee scored no income and can not do with the property related expenses for tax purposes.

The usufruct tax to the donor or his spouse was allowed for purposes of the gift tax until 31 December 2008 will be deducted from the tax base ( § 25Vorlage: § / Maintenance / buzer ErbStG old version ). That is, the reserved usufruct in favor of the donor was not recognized as a liability of the property, but the gift tax was deferred so far. Since 1 January 2009, the usufruct load is deducted from the tax base ( taxable purchase ) and thus also its tax-reducing effect. The premature gratuitous waiver of the reserved usufruct satisfies the conditions of the donation within the meaning of § 7Vorlage: § / Maintenance / buzer ErbStG.

Legal consequences and practical significance

In practice, the usufruct is often used in the transfer of assets by way of anticipated inheritance. The transferor gives the successor, although the property in the goods, but reserves his lifetime usufruct ago. Thus, the fruit can be drawn, the usufructuary against the owner has a right of possession. There is a statutory obligation, the obligation of the usufructuary to properly do business to get the thing and to assure them between the owner and the usufructuary. Also, the usufructuary shall bear the ordinary public and private legal loads. Uses that go beyond the ordinary conversation, the usufructuary may claim compensation from the owner, if the conditions of a management exist without order.

The recent interpretation of § 1041 of the Civil Code by the Federal Court imposes the usufructuary only such obligations or alimony to the " regular reports, recurring within shorter time intervals " are due. This formula has since been applied by the Supreme Court, which also states that a resident at the usufructuary for rent owner has to provide in addition to the rent where appropriate, the wider modernization measures and work on roof and subject itself, the usufructuary does not have to go in advance ( " dolo ... petit " principle). While this protects the usufructuary, but may mean that the owner could present considerable expenditure without that he has a right to dispose of the property.

A judgment of the Federal Social Court protects the other hand, the owner of a loaded with a usufruct property in the event of a claim of basic security: The government benefit is paid as a grant rather than a loan.