What does usufruct cover?

What does usufruct cover?

"I own a villa, am married and have three children from a previous marriage. I have arranged for the villa to revert to my children on my death, but for the usufruct to go to my wife. If she no longer wishes to live there, can she demand a periodic financial contribution from one of my children who will come to live there or, if the house is sold, a capital sum from the proceeds of the sale?

J, Geneva

Usufruct is the right to use, enjoy and benefit ("fruits") from a thing without owning it. Known as a relationship of possession, it should be distinguished from a simple contractual relationship such as a loan or lease. One of the key features of usufruct is that it is a personal right that cannot be assigned or transferred, and is recorded in the land register when it relates to real estate. Consequently, this right does not pass to the heirs of the usufructuary and cannot be sold. However, the usufructuary is not obliged to use the property and can transfer the exercise of this right to a third party by means of a lease agreement, which will enable him/her to collect the rent.

The usufruct of an immovable generally terminates by extinctive agreement, at the request of the usufructuary, on expiry of a stipulated term or on the death of the usufructuary. Neither the death of the owner nor the transfer of the property constitutes grounds for termination. Therefore, in the absence of any special provisions, the usufruct continues beyond the sale. If the owners wish to sell the villa, they would be well advised to obtain a waiver of the usufruct. Otherwise, the sale price is likely to be modest because of the usufruct attached to it. The usufructuary is therefore not affected by the sale of the property to a third party and cannot claim a share of the profit from the sale on the basis of this right.

It should also be noted that your wife may be entitled to part of the proceeds of the sale not because she is the usufructuary but because she is the heiress. Usufruct is an instrument for planning family assets, and there are several variants of it under both matrimonial and inheritance law. It would therefore be advisable to consider the question of the enjoyment of your villa and the distribution of the proceeds from its sale not only from the point of view of possession through a classic usufruct but also from an inheritance and matrimonial point of view.