Usufructuary retention concept
Very often it appears in practice that parents transfer their properties to their children with retention of usufruct. But how many know what the real meaning of withholding of usufruct is and above all what happens to the possibility of selling the property, whose usufruct has been withheld?
Usufruct is a personal servitude, within the meaning of the Law, and is a limited right in rem, which gives the beneficiary the power of full use and enjoyment of this object. In essence, the one who has the usufruct of a property is the one who, based on the Law, has the right to use and exploit it. The transferor of a property, keeping the usufruct of the property, which he intends to transfer, may remain in the use of the property, rent it, leave it vacant and generally take any action that falls under the concept of use and enjoyment specific property.
Of course, the usufructuary is bound by a series of obligations, such as, for example, his obligation to keep the essence of the thing intact and his obligation to maintain the thing. However, the main pillar on which the operation of usufruct in our Law is based is that the usufructuary has the right to use and exploit the thing and the small owner does have the property as his property, but he cannot use it and be exploited until the redemption of the usufruct, which occurs upon the death of the usufructuary, unless otherwise specified.
As to the question now, whether he who acquires the property without the usufruct can sell the property or is bound by the usufruct, the answer is that the petty owner is not in the least bound by the existence of the usufruct and therefore can disposal of the thing. Of course, regarding the sale of the property, it should be noted that the general principle applies that no one can transfer anything more than what he already has, and therefore the petty owner can only sell the petty ownership of the property. This practically means that the usufructuary will have all the aforementioned rights even after the sale of the property, except that after his death the property will pass entirely to the purchaser of the freehold and not to his child, who then and only then will acquire full ownership and will also receive the use of the property.
Legally, therefore, the sale of usufructuary property is allowed, but of course the deed shows that very few would spend a significant amount to acquire something, which they could neither use nor exploit, and indeed for an indefinite period of time, as the depreciation of usufruct occurs with death, which is an event that is generally unforeseeable.
Alexandros G. Tsapelis, Lawyer