Usufruct is a limited real right over another person’s property, which grants the beneficiary the power to use and enjoy that property, while preserving its integrity. It follows from the definition that, since usufruct consists of the full use and enjoyment of another’s property, the ownership of that property is stripped away and is now referred to as bare ownership. However, when the usufruct expires, i.e. when the use and enjoyment of the property reverts to the owner, ownership becomes complete again.
From the combination of the provisions of Articles 1033, 1142, 1144, 1166, and 1259 of the Civil Code, it follows that the personal servitude of usufruct consists of the limited real right of the usufructuary to use and enjoy another’s property, while preserving its integrity. Usufruct is established by legal act or by adverse possession (Article 1143 of the Civil Code). The corresponding provisions on the acquisition of ownership apply mutatis mutandis. The owner of real estate who transfers it to another for a lawful reason, by means of a notarized document that is transcribed, may retain the usufruct thereof, either in his own favor, in favor of a third party, or in his own favor and in favor of a third party.
According to Articles 1167 and 1168 of the Civil Code, the extinction of usufruct for one of the reasons specified in the law has the effect that the usufruct automatically reverts to the ownership from which it was separated, without this having to be specified at the time of its establishment, i.e. it reverts to the person who already holds the ownership, since the reversion refers to the ownership existing at the time of the extinction of the usufruct.
Furthermore, from the combination of Articles 1142, 1143, 1166, and 1167(2) of the Civil Code, it follows that it can be validly agreed that the usufruct of his property, which was initially agreed for the lifetime of the usufructuary, will not be extinguished upon the latter’s death, but will then be transferred to a third party. Thus, it is permissible to agree that the usufruct shall be transferred to a third party, subject to the suspensive condition of the death of the current usufructuary, provided that, in all other respects, the legal formalities for the transfer of ownership of real estate are complied with. The agreement on the establishment or transfer of a real right (establishment of usufruct – transfer of ownership) may also be drawn up in favor of a third party (Article 410 et seq. of the Civil Code), in which case the third party will acquire the right from the moment the real right contract in favor of the third party is registered in their name, subject to the provisions on suspensive conditions or deadlines.
Finally, it follows from the provisions of Article 1166 of the Civil Code that the transfer of usufruct based on the agreement of the parties in the constitutive act should not be unlimited, in the sense of allowing successive transfers. A restrictive interpretation of paragraph a) of the above provision should lead to the conclusion that the transfer is permissible once to a third party, after which it must be extinguished upon the death of the latter. Unrestricted freedom of transfer would result in the stripping of ownership, which is contrary to the legislator’s intention. Thus, it may be agreed that both the usufructuary and his heir shall have it, or it may be agreed that the usufructuary shall be entitled to bequeath it to his heir, in which case the heir of the usufructuary shall also have the inheritance.
However, it is not possible to establish a usufruct that will pass on to all the usufructuary’s heirs indefinitely. The deed establishing the usufruct may also stipulate that the usufructuary may transfer the right in rem of usufruct to another person during his lifetime. Upon transfer to the latter, he becomes the usufructuary and the usufruct is extinguished upon his death and not that of the original usufructuary. However, it is not possible to stipulate in the act establishing the usufruct that the usufruct may be further transferred from the person to whom it was transferred by the original usufructuary, and so on ad infinitum, because this would result in the definitive and permanent separation of the benefits of the property from the owner, whose ownership would remain in perpetuity as bare ownership, as it would thus be permanently stripped of its main benefits, which would be contrary to the concept of ownership as universal power over the thing (Article 1000 of the Civil Code), according to which the owner is entitled to enjoy all the benefits of the thing.
