Usufruct: Maintenance work, contribution obligation and accession

1. Maintenance works within a right of usufruct

The usufructuary is obliged to carry out all maintenance repairs to the property he enjoys. These are repairs that are necessary in the short or long term to preserve the value of the property, subject to normal wear and tear, ageing or force majeure.

On the other hand, major repairs are at the expense of the naked owner. Major repairs are considered to be those relating to the structure of the property or its inherent parts or the cost which manifestly exceeds the value of the property.

However, where such major repairs relate to the buildings or plantings which the usufructuary has erected himself/herself, the usufructuary himself/herself must bear the costs for such repairs.

In addition, the naked owner, when carrying out major repairs, may require the usufructuary to contribute proportionally to the cost of the repairs. This contribution will be determined in proportion to the value of the usufruct versus the value of the full ownership. However, the legislator only provides a calculation table for natural persons and not for legal entities.

It is possible to deviate by contract from this obligation to contribute or to provide for a different calculation table for the contribution, because these provisions are not mandatory.

The parties, both the usufructuary and the naked owner, also have the option of having the usufruct converted at any time, either into full ownership, into a sum of money, or into a guaranteed and indexed interest charge.

2. Contribution to charges within a usufruct

Although it will be the usufructuary who is liable for all periodic charges, the naked owner will have to bear the extraordinary charges, even if they have to be paid periodically.

The usufructuary will only have to bear the periodic charges as well as the extraordinary charges for the constructions and/or planting that the usufructuary has created himself.

3. Right of accession

If the usufructuary has erected buildings and/or plantings within the limits of his right, without obligation and with the permission of the naked owner, the latter will have to compensate the usufructuary for these works and/or plantations. The naked owner cannot insist on their removal.

Until payment has been made, the usufructuary has a right of retention on these works and/or plantings. He may also decide to remove these works or plantings during the term of his right of usufruct.

If the naked owner's consent is pending, he will become the owner of the buildings and plantings by virtue of his right of accession.

In the absence of the consent of the naked owner, the buildings and/or plantings will become property of the naked owner, without any compensation being due.

For more information on the pros and cons of the usufruct concept, consult the Seeds of Law team on +32 (0)2 747 40 07 or via info@seeds.law.

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