By Vitor Ferrari and Ivan Kubala

Some legal institutions are well-known in popular culture, since they are widely used by the population, such as usufruct. This is characterized by the transfer of possession of a good to a third party, who acquires use and enjoyment of the transferred good, without the person who transferred it losing ownership of his/her assets. In other words, usufruct is nothing more than a “loan”: the ownership of the good is not transferred, but only the right to have it. The person who lends the good becomes a “bare owner”, because although he/she still has ownership, he/she is deprived of it; the person who comes to own it is called a usufructuary. This person can use and enjoy the “loaned” thing, however, since he/she is not the real owner, he/she cannot sell it, for example.

There are several types of usufruct: they may be related to movable or immovable property; have a fixed term or be for life; be the subject of a contract between legal entities or individuals; instituted by law or simply by the will of the parties.

Legal Usufruct: is established by legal determination. This is what occurs, for example, in the case of parents who are usufructuaries of the assets of their minor children, and must administer them and be able to enjoy them.

Conventional Usufruct: this is the one that depends only on the will of the parties. This usufruct is subdivided into 2: alienation, which occurs when the owner of a property grants usufruct to another, becoming the bare owner; or by retention, when the owner of the property transfers ownership to another and reserves the usufruct for himself, passing from owner to usufructuary.

Regarding the duration of the usufruct, it can be for life or temporary. The first case is the most common, it is a usufruct without a fixed term that ends with the death of the usufructuary, causing the bare owner to return to the status of owner of the property, since he/she once again has possession of the asset. The second case ends after a period predetermined between the parties. Legal entities can be usufructuaries, however the usufruct must have a fixed term and last for a maximum of 30 years. This modality is known as thirty-year usufruct.

As for the usufruct property, the usufruct may be proper, when the property is non-fungible (irreplaceable) or non-consumable, such as real estate; or improper, when the property is fungible (replaceable) or consumable. When the usufruct ends, the usufructuary must return the property to the bare owner. In the case of proper usufruct, it is sufficient for the usufructuary to hand over the property over which he had possession. However, in the case of improper usufruct, the usufructuary must return the quantity and quality of the usufruct property. If this is not possible, he must return the value of the property at the time of return.

With the collaboration of Luís Felipe Meira Marques Simão