Clarification on usufruct and dwelling rights

Clarification on usufruct and dwelling rights

"I read with interest your two previous columns on the right of dwelling or the usufruct that it is possible to give to our children over a house, instead of entering into a lease, but I'm not sure I fully understood the difference between them. Thank you for clarifying things for me once again.

Aline, Geneva

The usufructuary's right of enjoyment of a dwelling includes the right to transfer its exercise to a third party, except in cases where it is deemed to be "eminently personal". This being the case, the usufructuary has a duty to preserve the substance of the object of the usufruct and does not have the power to alienate or sell it. This is why it cannot be transferred to the heirs of the beneficial owner, and why it must be entered in the Commercial Register for it to be valid.

Usufruct is therefore broader than the right of habitation, which confers on its beneficiary only the right to live in a house or to occupy part of it, possibly with his family and children. Article 777 of the Civil Code even allows the right of habitation to be limited solely to the person to whom it has been granted, whereas the usufructuary has, unless otherwise provided, a full right of enjoyment over the property under article 745 of the Civil Code.

Apart from this, the legal provisions governing the right of habitation refer to those concerning usufruct, which means that its beneficiary is also required to carry out ordinary maintenance repairs, provided that he or she has exclusive use of the house or flat. However, the costs incurred by the usufructuary are greater than those relating to the right of habitation, because in addition to all the current and usual costs incurred by the normal use of the property, the usufructuary must pay any mortgage costs, taxes and insurance premiums.

It should be noted that a usufruct can also be onerous, like a lease, but one of the main differences between the usufruct of a house and a lease is its enforceability against the owner or any purchaser of the property, because of its compulsory entry in the Land Register, which is rarely the case with a lease.