Usufruct, Usus and Habitatio are rights which are usually created in a Will, but which may also be created by agreement.
Usufruct, Usus and Habitatio are personal servitudes. A personal servitude is a limited real right in favour of a person, granting that person the right to do something on someone else’s property. This is why these rights are usually granted in terms of a Will, where the deceased is the owner of the property and usually their spouse/life partner is granted these rights and their children inherit ownership of the property.
A Usufruct grants a person the right to use another person’s property and anything ancillary thereto such as furniture and equipment and to collect and use the fruits thereof. Fruits are natural products (eg. fruit, vegetables, milk, eggs, animal offspring) as well as income recovered from the property (eg. rent). The property must be maintained by the usufructuary (the holder of the right) without compensation and must be returned to the owner in substantially the same condition.
A Usufruct cannot be transferred and lapses when the usufructuary dies. Usufructs can also be granted for a fixed period.
Usus (use) grants a person the right to use another person’s property for his own use and for the use of his family without changing the essential qualities of the property. The difference between a usufruct and usus is that usus is much more restrictive as the user may only take fruits for his and his family’s personal daily needs. He cannot sell the fruits or lease the property.
Habitatio or residency grants a person and his family the right to live in someone else’s house without changing the essential qualities of the property. Unlike usus, habitatio permits the holder of the right to lease the property. The habitatio ends when a fixed period has lapsed or on the death of the holder of the right.
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