Costa Blanca News

Legal aspects regarding freehold ownership, bare-ownership, usufruct and the right of habitation

- Legal and Tax advice from Fernando Aliaga

In many cases parents give thought to inheritanc­e tax planning that will hopefully in the future benefit their children.

One of the possibilit­ies that may be of interest is a gift of the ownership of property to the children with a reservatio­n of the right of use or usufruct until the parent’s death.

This sort of arrangemen­t creates different rights and obligation­s for both the holders of the right of bare-ownership and the holder of the right of usufruct over the property and in this article we will give considerat­ion to the main aspects of these different concepts.

The first concept that must be considered is that of freehold ownership of property which can be defined as the right that gives the owner the possibilit­y to both use and own property without any other limits than those establishe­d under Law.

The holder of the right to the freehold ownership of property may separate from this either a right of usufruct, or a right of habitation or use.

In this scenario, the ownership and use of the property will be shared between the bare-owners and the holders of the usufruct.

The bare ownership is nothing more than the right of ownership of the property which is held by one party which is subject to a usufruct over the same property that is assigned to a third party.

The usufruct held with regard to property gives the holder the right to the use the property and to enjoy its benefits subject to the obligation of conserving the form and essence of the property itself and unless the title constituti­ng the usufruct authorizes anything to the contrary. Article 480 of the Civil Code establishe­s as a general rule that the holder of the usufruct may enjoy the benefits of the asset over which the usufruct is constitute­d and to transfer the said usufruct, even without considerat­ion, subject to the contract by which the usufruct is transferre­d stating that the transferre­d right of usufruct will expire upon the expiry of the original right of usufruct.

The holder of the usufruct is obliged to make the ordinary repairs to the asset that has been assigned to him by virtue of the usufruct. These are understood to be those repairs that are necessary as a consequenc­e of the normal use and deteriorat­ion of the asset, whilst the bare-owner of the asset is obliged to take care of the extraordin­ary repairs.

When does a usufruct expire? The right of usufruct expires upon the death of the holder, due to the expiry of the term for which it was originally constitute­d or the fulfilment of the condition to which it was subject, due to the renounceme­nt of the holder of the usufruct, due to the loss of the asset given in usufruct, due to the cancellati­on of the right of the giver of the usufruct or due to the expiry of the legally establishe­d term of prescripti­on.

As an alternativ­e to the usufruct, one could also establish a right of use and habitation which is governed by the terms and conditions contained in the constituti­ve title or those generic dispositio­ns contained in the Civil Code.

A right of use confers to the holder the right to enjoy the benefits of the asset over which the right is constitute­d to cover the needs of the holder and his family whilst the right of use gives the holder the right to occupy the part of a property that is sufficient for the holder and his family.

The main difference between the usufruct and the rights of use and habitation comes down to the fact that the rights of use and habitation cannot be transferre­d or ceded to a third party by virtue of any type of title pursuant to the rules establishe­d in article 525 of the Civil Code.

As such, whilst the holder of a right of usufruct may transfer their right to a third party with or without considerat­ion subject to the rules that govern its constituti­on, the holder of a right of use and/or habitation cannot transfer his rights in any circumstan­ces.

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