Can I rent out my home if I have the usufruct?
Yes. As usufructuary you are entitled to all the benefits of the home, so you can let it without asking the bare owner's permission and the rent is yours, unless the title that created the usufruct says otherwise. You must let it for its existing use, which is as a home. You should be aware that the tenancy ends when the usufruct ends, normally on your death, even if the tenancy has not reached the five-year minimum term. If you want to give the tenant more security, the prudent course is for the bare owner to sign the tenancy agreement too.
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What you can do and what you must respect
The “Código Civil de Cataluña”, the Catalan Civil Code, gives the usufructuary the right to possess the home and to receive all its benefits, except those excluded by law or by the title. Letting it is one of them. That is why:
- You do not need the permission of the bare owner, who is the owner of the home, unless the will, gift or deed that created the usufruct requires it. It is advisable to read it first.
- You sign the tenancy agreement as landlord, with the obligations of any landlord towards the tenant.
- The rent is yours and you declare it on your income tax return (the “IRPF”, Spain's personal income tax).
- You must respect the purpose of the home. You can let it as a home, but not turn it into something else.
It is advisable for the agreement to state that you are the usufructuary and not the owner. The tenant can check this with a land registry extract (“nota simple”), the summary issued by the “Registro de la Propiedad”, the Land Registry, showing who owns the property and what charges it carries.
When the tenancy ends
The Catalan code says that contracts made by the usufructuary end when the usufruct ends. The “Ley de Arrendamientos Urbanos”, Spain's urban tenancies act, which is a national law, says the same about tenancies signed by a usufructuary. That is why, if you die, or if your usufruct was for a fixed period and that period expires, the tenancy ends even if it has not reached the five-year minimum term or the agreed term. The protection the law gives tenants when the owner loses the home for other reasons, such as a mortgage repossession, does not extend to usufruct.
How to give the tenant more security
If you want to let on a long-term basis, or the tenant asks for it, the prudent course is for the bare owner to sign the agreement too or to consent to it in writing. That way the bare owner is bound by it and will generally have to respect it until it ends even if the usufruct ends earlier. Without that signature, the tenant takes on the risk of the agreement ending early. The tenant should be aware of this when signing.
Under the Spanish Civil Code (“Código civil”), which applies in most of the rest of Spain, the rule is the same. The usufructuary can let the property and the tenancy ends with the usufruct. If the owner has consented to it, they will generally have to respect it.
This answer is provided for educational purposes and offers initial guidance on the question raised. Every matter has its own circumstances and nuances that require individual assessment. For that reason, before taking decisions with significant consequences, it is advisable to consult a professional and not to rely solely on this information. Personalised advice makes it possible to apply these explanations to the specific case and to assess the options available with greater certainty.