Laila Cassim (LLB) | Conveyancing Supervisor :Conveyancing Department
Is it possible to secure the interests of someone else, such as a spouse or destitute relative who may be living with you on a property which you own to ensure that they are not left without a ‘roof over their head’?
The simple answer is Yes. As a property owner, you are allowed to secure the interests of someone else through a USUFRUCT in terms of which they are granted the right to reside on and use the property without owning the property.
WHAT IS A USUFRUCT?
A usufruct is a personal servitude, i.e., a right given by the owner of a property to someone else.
The holder of a usufruct is referred to as a Usufructuary and the owner is known as the Bare Dominium owner (“owner”).
A usufruct cannot be registered beyond the lifetime of the usufructuary and is also not transferable and as such cannot be disposed of or bequeathed upon the death of the usufructuary.
A usufruct, governed by Sections 66, 68 and 69 of the Deeds Registries Act 37 of 1947 and the common law is a real right in the property of another.
HOW IS A USUFRUCT CREATED?
A usufruct can be implemented during the lifetime of the owner of the property or in terms of the owner’s last will and testament.
When done in terms of the owner’s last will and testament, the property is generally bequeathed to the children (heirs) and to protect the surviving spouse from being left without a home to stay in, a usufruct in favour of the surviving spouse is provisioned which will ensure that the surviving spouse can reside in the property until their demise.
In both instances, the usufruct will need to be registered at the Deeds Office and endorsed against the title of the property.
SCOPE OF THE RIGHT
The usufructuary has the right to possession, use and enjoyment of the property and may even lease the property.
A usufructuary also has the obligation to pay for the maintenance and upkeep as well as rates and taxes, however major structural repairs, and expenses in terms of the property are for the owner to bear.
The usufructuary’s right lapses on the death of the usufructuary or the renunciation of the right or the transfer of the property together with the owner.
The usufruct exists for the lifetime of the Usufructuary, and the property must be restored on the termination of the right to the owner who will then have unencumbered ownership of the property.
It is common practice to appoint children as heirs to a property and leave a usufruct to the surviving spouse to ensure that although the children will inherit the property the spouse will be able to make use of and benefit from it until their demise.
It is important to understand the rights arising from usufruct as it can be useful in certain instances, which include inter-alia, inheritance, as it protects the rights of a specific person to use and benefit from a property. It is a means of ensuring that your loved ones, including your surviving spouse has a roof over their head for the remainder of their lives.