Usufruct & Right of Use and Residence. Outline

Transcription

1 Royal University of Law and Economics English Language Based Bachelor of Law Program Usufruct & Right of Use and Residence Course: Land Law Lectured by: Dr. Phalthy Hap Usufruct Outline - Right of Use and Residence 2 1

2 Usufruct (1) - Usufruct: right to use and enjoy another s property for a specific period of time that may not exceed the life of the usufructuary. (CC256(1)) 3 Usufruct (2) - Can be established by: Law or agreement (CC257) shall take precedence over contractual usufruct unless otherwise provided by law. - May be created in writing or otherwise (CC258) can be extinguished anytime: 3 months for buildings 1 year for land 4 2

3 Usufruct (3) Term of usufruct in existence: (CC260) A fixed term, Until it fulfills any condition determined, A non-fixed term (until the death of the usufructuary) Can be contested against the third party if it is registered. (CC259) 5 Usufruct (4) The right of usufructurary: Use and enjoy the property subject to usufruct. (CC256(2)) Can transfer usufruct or dispose of it with or without consideration. (CC263) Can lease the property subject to usufruct for a fixed term no exceeding 3 years (CC264) 6 3

4 Usufruct (5) The right of usufructuary: May exercise the same right to demand return, to remove disturbance and to prevent disturbance vis-à-vis an infringement of the usufruct as the owner. (CC265) Cannot claim for the compensation of the improvements on immovables which have been already done by usufructuary.(cc269(2)) 7 Usufruct (6) Duties of usufructuary: Inform the bare owner when there is any violation of the property subject to usufruct otherwise shall bear responsibilities of damages arising therefrom. (CC266) Bear the cost of maintenance and repairs of the immovable property (CC271) Pay taxes and other imposts relating to the immovable property subject to usufruct as well as premiums on insurance. (CC272) 8 4

5 Usufruct (7) Usufruct may exist during the term of usufruct. (CC260) For usufruct over the building above the ground, if the building is destroyed, the usufruct is also extinguished. However, if the usufruct covers both land and building, if the building is destroyed, the usufruct over the land still remains. (CC270) 9 Usufruct (8) Rights and duties of a bare owner: Has the right to dispose of immovable property subject to usufruct Is responsible for the expenses of major repairs such as changes of principal walls, beams and pillars and foundations and to re- roofing. (CC271) Cannot demand the usufructuary to restore the immovable to its original conditions unless otherwise. (CC269(1)) 10 5

6 Usufruct (9) Usufruct is extinguished upon: Death of usufructuary, (CC268) Expiration of the term of a usufruct contract, (CC268) Complete destruction of immovable property subject to usufruct, (CC270) Court decision to extinguish the usufruct in case the usufructuary does not perform in accordance with the usufruct content such as causes significant damages or does not properly preserve the immovable property (CC267) 11 Right of Use and Residence (1) Owner A Paddy Field B holder of right of use Owner A B holder of right of residence 1st floor Image from Google 12 6

7 Right of Use and Residence (2) Right of use: right to enjoy the fruits of immovable property, to the extent of the needs of the right holder and his/her family. (CC274(1)) Right of residence: the right to occupy part of the building(s), to the extent required for residence by the right holder and his/her family. (CC274(2)) 13 Right of Use and Residence (3) - Can be established: By law or agreement (CC275) take the precedence over the right of use by agreement. In writing or not in writing (CC276) can be extinguished any time: 3 months after request to extinguish 14 7

8 Right of Use and Residence (4) Right of use and residence can contest against the third party only in the case of actual possession is made. (CC277) 15 Right of Use and Residence (5) A holder of right of use and residence: Allow the family members to use and enjoy the property together (CC279) Bear responsibilities for the expense of maintenance and repairs, taxes and other imposts and the premiums of insurance (CC284) Can exercise the same rights to demand return, to remove disturbance and to prevent disturbance vis-à-vis an infringement of his rights of use and residence. (CC281) 16 8

9 Right of Use and Residence (6) Right of use and residence is extinguished: Death of the holder of right of use and residence. (CC283) The term specified ends. (CC283) The decision of the court through the request of owner of immovable property. (CC282) 17 Thank You! Q&A References 1. The 1992 Land Law 2. The 2001 LandLaw 3. The 2007 Civil Code 18 9