Obligations and rights of the holder of the right of use of a property
The legal figure of the right of use (usufructo) is a commonly used mechanism that can be used to protect the rights of certain beneficiaries who the deceased may wish to provide with the use of a property until their own death. However, in many cases, the constitution of the right of use may cause conflict between the holder of the right of use and the bareowners who hold the underlying right of ownership of the property when they are unsure of their respective legal obligations and rights.
With regard to the taxes and other contributions that must be paid on the property, it is obvious that the holder of the right of use, as the user of the property, is liable for the payment of the utilities such as the water, electricity and other similar utility bills. However, who is liable for the payment of the rates bill or the community fees for example?
Article 504 of the Civil Code establishes that: “The payment of the charges and the annual contributions and those expenses that are considered to encumber the income, will be the liability of the holder of the right of use until its expiry”.
As such, by virtue of the said article, the holder of the right of use would be liable for the payment of the rates and rubbish bills and also the ordinary community fees if the property were situated within a community of owners. The holder of the right of use would also be liable to pay the part of the community insurance that corresponded to the property in the case that it were situated within a condominium.
However, and despite the rule with regard to the payment of the rates and rubbish bills referred to above, what happens if the holder of the right of use does not make payment of the rates bill? From the perspective of the Town Hall that has the right to collect the rates and rubbish bills, the tax payer from whom payment can be enforced is the bare-owner of the property and as such, in the case of non payment of the bills, the corresponding authorities would actually direct the claim for payment at the bareowner and the property itself would ultimately respond for any ultimate non payment of the rates bills. If the bareowner of the property makes payment of the rates bill to avoid the consequences of a continued non payment, it goes without saying that ultimately he would have a right to reclaim the amount paid from the holder of the right of use.
In the case of the repairs that may need to be made to the property, the Law establishes that the holder of the right of use is liable to make payment of the “ordinary repairs” that arise as a consequence of a normal use of the property (for example, the repair of a tap or window that has been broken..). However, those repairs that are considered to be of an extraordinary nature, which do not arise as a consequence of the wear caused by the normal use of the property, are the liability of the bare-owner. Even if this last type of repairs are carried out and paid for by the holder of the right of use, the cost may be claimed back from the bareowner of the property. However, the holder of the right of use must inform the bare-owner of any urgent repair that the property requires.
We have already mentioned that the normal contributions for a property situated within a community of owners are payable by the holder of the right of use, but at times, the resident’s association may approve extraordinary bills that are required to undertake large scale jobs within the community such as, for example, the installation of a lift, repairs necessary to stop leaks arising from construction defects or work required to secure the structural stability of the building. In these cases, there is not a definite criteria, although most legal precedents tend to consider that the payment for large scale jobs such as those that make a comprehensive repair to an essential element of a building would be considered to be of an extraordinary nature and as such, the liability for payment of the cost would correspond to the bare-owner.