App SUPERCASA - Discover your new home
App SUPERCASA
Discover your new home
Open
App SUPERCASA - Discover your new home
App SUPERCASA
Discover your new home
Open
Real Estate Market News
Categories
Real estate

What are usufruct rights? Find out more

14 JUNE 2024
Topics
Imóveis Mercado Imobiliário Comprar Casa em Portugal Impostos Negócios Imobiliários Casas para arrendar Documento Particular Autenticado (DPA) Heranças Proprietários Escritura Glossário
Did you know that you can donate or sell a property and still retain the right to your benefit? We'll explain everything.
What are usufruct rights? Find out more
Source: Freepik
Author: Redaction

The right of usufruct is quite common in Portugal and is used above all in situations of death, for example through a living gift. Under this condition, the person who donates the house, for example to their children, reserves the right to continue living in it for as long as they live. It is therefore a right that speeds up inheritance and partition situations, as well as managing conflicts between family members.

Even so, it's important to learn more about this right, which has legislative nuances that it's important to be aware of.

How does the right to usufruct work?

As we explained above, in a situation where a father, for example, owns a property, he can give it to his children and continue to live in the property until his death, benefiting from the right to usufruct. In other words, as the law stipulates, he is "in temporary and full enjoyment of a thing or right belonging to another, without altering its form or substance".

In this way, the father who gave the house to the children, although he remains the usufructuary, no longer truly owns it, but continues to enjoy it until further notice.

This is a right that does not apply exclusively to property, but also to other assets and/or rights, such as money in bank accounts, securities, vehicles, among others.

Therefore, under the law, the usufructuary may temporarily and fully enjoy an asset or right, without altering its substance or form, which means that they have the right to use and benefit from the asset, as if they were its owner, but without being able to alienate or destroy it.

It is also important to emphasise that this is a right that can be applied to more than one person, successively or simultaneously, i.e. it is possible to assign the right of usufruct to two family members, as long as both exist at the time of the first person's usufruct of the property.

Important points

    - In situations where the right to usufruct is granted to more than one person, it only ends when the last one dies;

    - It is a right that can be granted for life, however, it is not transferable to heirs,

    - If the beneficiary of the usufruct is a legal person, the right is only valid for a period of 30 years;

    - The right ceases on the death of the beneficiary or on expiry of the established period, but also if the beneficiary renounces their right or fails to exercise it for a period of 20 years.

How to grant or benefit from the usufruct of a property?

You have to understand that the right to usufruct is different from usucaption, where in the latter situation a person assumes ownership of the property on the grounds that they have held it for a long period of time, whereas in the right to usufruct, this is a right stipulated by contract, provision of law or will, although usucaption can be presented as a basis.

However, in order to validate the right to usufruct, you need to use a lawyer, solicitor or notary to ensure that the document sealing the usufruct agreement is authenticated.

Rights and duties

The main duty to be ensured by the beneficiary of the usufruct right is the administration of the property, keeping and preserving it as if it were their own.

In the case of a property, in addition to the obligation to keep it preserved and well cared for, they must also ensure the payment of IMI and other taxes, as well as repairs that are necessary for its conservation and maintenance. On the other hand, the owner is responsible for major repairs related to improvements.

I'm the usufructuary of a property: can I sell or rent it out?

The answer is yes, but under various conditions.

In the case of a sale, only the owner can do this, on the condition that the usufructuary remains in residence, so the buyer cannot occupy the property or evict the current resident. This is a very rare type of deal, due to the nuances and complications associated with it, as the buyer won't be able to live in the house or make an income from it, even though there is the possibility of sale in the law.

On the other hand, as far as renting is concerned, the usufructuary himself can put the property on the rental market, but only if he is the beneficiary of the property, because in the usufruct right the owner eschews the use and management of the house and is obliged to accept the beneficiary's decisions. However, if the owner dies, the lease expires and so does the right to usufruct.

SUPERCASA always recommends seeking advice from specialised professionals to help you understand and comply with the law.

Topics
Imóveis Mercado Imobiliário Comprar Casa em Portugal Impostos Negócios Imobiliários Casas para arrendar Documento Particular Autenticado (DPA) Heranças Proprietários Escritura Glossário
Have you read the latest Super News?
pixel