Property law

Ownership is the right to exercise complete control of an asset. It is "the right to enjoy and have things in the most absolute manner, provided that one does not make of it a use prohibited by laws or regulations" (Civil Code, Art. 544). The owner can dispose of the thing (abusus) as he/she desires (transfer, destruction, choice of operating mode). He/she may use it (usus) (e.g. live in their house) and collect the return (fructus) (rent one's house and receive rent).

Usufruct is division of property. It is "the right to enjoy things owned by another, such as the owner themselves, with the responsibility of retaining the substance" (Civil Code, Art. 578).

Usufruct is always temporary, either a lifetime estate, or for a set duration; when entrusted to legal entities, this period cannot exceed 30 years.

The right to use and enjoy is conferred to the usufructuary; the abusus belongs to the bare owner. The usufructuary therefore has the same rights on the thing as an owner excepting being able to use it; he/she must retain the substance.

If usufruct concerns consumable goods (money, grain, spirits), "the usufructuary has the right to use it, but has to return, at the end of the usufruct, either goods of the same quantity and quality or their estimated value at the date of restitution" (Civil code, Art. 587). This is referred to as "improper usufruct", i.e. a specific usufruct which confers upon its beneficiary the right to dispose of the thing (provided they restitute a similar thing or its counter value): a right which usually does not belong to the usufructuary.

The usufruct is either legal or conventional (Civil Code, Art. 579). For example, when it is universal, it is the result of the law (legal usufruct of the surviving spouse); when it concerns a specific asset, it refers to a particular act (e.g. usufruct on a building may result from a donation or a will). The usufruct will always be the result of a detachment of property right which can also take the form of a donation or be the result of a succession.

THE OBJECTIVE

Why enact A division of property through a notarised deed ?



Division of property distributes the attributes of ownership between at least two different persons. The consequences of such an operation must be measured. A usufruct which is either poorly anticipated or organised may result in deadlock situations and even alter the substance of the divided asset itself.

The notarised format will ensure that the conditions of division comply with each party's wishes. Indeed, the notary will exercise their duty to advise and ensure the effectiveness of their deed. He/she will organise the division of property and its consequences over time in a manner that leaves no room for dispute. In the presence of a quasi-usufruct, the use of a notarised deed is important, notably to determine the conditions of the claim for return. If the division has been made without a deed, it would be preferable to draft a division agreement to organise each party's rights. The main strengths of a notarised deed are sound conservation and its legal enforceability. In the presence of a usufruct which is exercised as an quasi-usufruct, the notarised deed is important when determining the conditions of the claim for return which will be fully enforceable. 


The main benefits of a notarised deed are sound conservation and its legal enforceability.


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