What is the usufructuary not allowed to do?

Question

José Manuel Alburquerque · Accepted Answer

The usufructuary cannot sell, give away or mortgage the home, because it is not theirs, unless the title that created the usufruct expressly gives them that power. Nor can they change its use, for example by turning a home into commercial premises, or carry out works that alter its form or substance or that damage it. What they can sell, transfer or mortgage is their own usufruct. But in Catalonia, if they sell it, the bare owner has a preferential right to buy it at the same price. What they cannot do with the home The “Código Civil de Cataluña”, the Catalan Civil Code, defines usufruct as the right to use and enjoy someone else's property while preserving its form and substance. The usufructuary must respect the purpose of the property and behave as a good administrator. That is why they cannot: Sell it, give it away or mortgage it. Only the bare owner, who owns it even though they do not have the use of it, can do so without harming the usufruct. The exception is where the title gives the usufructuary the power to dispose of it. If it gives that power only in cases of need, the usufructuary can only use it for their personal or family needs and after spending any assets of their own that they do not need. Change its use. A home has to remain a home, so they cannot turn it into commercial premises or let it for anything else. The same applies to a farm or commercial premises. Carry out works that alter the form or substance of the home or that damage it, such as knocking down load-bearing walls or completely changing its layout. They can make improvements within those limits and take them away at the end if they can be removed without damaging anything. The Catalan code does not provide for the bare owner to pay for them. Neglect it. They are liable to the bare owner for any damage they cause. The bare owner can also ask the court to take measures to protect the home. The usufructuary must also inform the bare owner of anything others do that may harm it, such as a neighbour's building work that encroaches on the property. If they fail to do so, they are liable for the damage caused by that silence. Take possession of the property without first drawing up an inventory, to which they must summon the bare owner. They must also provide a guarantee that they will fulfil their obligations, unless the title or the law exempts them from doing so. For example, a surviving spouse who has the usufruct of the whole estate by law does not have to provide one. What they can do with their usufruct Live in the home or let it and keep the rent. Sell or transfer their usufruct, free of charge or for a price. Whoever acquires it will normally hold it until the death of the usufructuary who transferred it, because a lifetime usufruct is measured by that person's life. Mortgage their usufruct, although it is not common for a bank to accept this. In Catalonia, if the usufructuary sells their usufruct, the bare owner has a preferential right to buy it, unless the title that created it says otherwise. It works like this: The usufructuary must notify the bare owner in a way that provides reliable proof, for example by “burofax” (a certified letter with proof of content), of who they are selling it to, at what price and on what terms. From that notice, the bare owner has one month to take it at the same price. This is the right of first refusal (“tanteo”). If they do not notify the bare owner, or sell on different terms, the bare owner can take the usufruct for themselves by paying the same as the buyer. The bare owner has three months from learning of the sale. This is the right to buy back (“retracto”). The bare owner, on the other hand, can sell the bare ownership without the usufructuary's permission, but cannot evict the usufructuary or interfere with their use. Under the Spanish Civil Code (“Código civil”), which applies in most of the rest of Spain, the bare owner has no such preferential right.