Usufruct

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The usufruct is Germany's inalienable and unvererbliche absolute right , which uses ( § 100 BGB ) a strange thing , a foreign law or assets to draw (usufruct of things, § 1030 BGB; usufruct of an inheritance , § 1089 BGB).

etymology

The term is a loan translation from Latin ūsus frūctus 'fruit enjoyment '. The usufruct appeared as a term for the first time in the Bern Council Manual of 1496. Although the terms usufruct and beneficiaries since the Middle Ages in the German-speaking countries were introduced, they were able to completely displace Latin term not until the 19th century. The most common form of usufruct is a lifelong right to live in an apartment or house and to withdraw all uses from the property . A distinction must be made between this and the right of residence , which only allows the occupancy / use of a building or parts of a building, but not the cultivation of fruit .

Marking of a fruit enjoyment trail in Austria

general definition

The ownership of a thing essentially gives the owner three rights: use ( Latin usus ), fruiting (Latin fructus ) and disposal (Latin abusus ). By establishing the usufruct, the owner of a thing transfers the right of use and fruiting to a third party and only retains the right of disposal for himself. In this way, the legal rule over a thing is, so to speak, "split up", and the legal figures of the "mere owner" (Latin nudus dominus , French nu-propriétaire , Dutch bloot eigenaar ), d. H. the right holder of the usufructuary property, and the "usufructuary". The former retains “mere ownership” (Latin nudum dominium , a form of nudum ius ) of the thing, the full use of which, including the fruiting, lies with the beneficial owner (“ beneficial owner ”).

Legal content in Germany

Unlike the easement and the limited personal servitude, the usufruct grants the usufructuary not only individual rights of use, but the right to extensive use of the encumbered object. This includes the drawing of "fruits" ( § 99 BGB), that is, the products and other yields of the object. B. the harvest on an agricultural property or the stones removed from a quarry, legal fruits the rent and lease claims .

The usufruct is consequently the real , i.e. absolutely effective counterpart to the contractual lease : the person entitled not only has a right to use the property against his contractual partner, but also a right to use the encumbered object, which affects everyone. The usufruct is generally inalienable and non-transferable (exception: § 1059a BGB). However, its exercise can be left to a third party ( § 1059 BGB). The usufruct is non- attachable according to § 1059b BGB.

Order

The order of the usufruct, has missing extent that special regulations in the form to be made responsible for disposal operations is required on each object:

Exceptionally, a usufruct can also arise by law.

Usufruct can also only be ordered for a co-ownership share instead of the entire property ( fractional usufruct ) or refer to only part of the usages ( quota usufruct ). The usufructuary is protected against impairments and disturbances of his rights like an owner ( § 1004 BGB).

The admissibility of an owner's usufruct (i.e. the establishment of a usufruct over one's own property) is controversial; the BGH regards the establishment of a usufruct on one's own property as permissible, for example in preparation for a sale with reservation of usufruct.

As with any disposal transaction , the creation of a usufruct is effective without any legal reason (principle of abstraction ). However, there is then a fundamental right to transfer back under enrichment law ( §§ 812 ff. BGB). In order to be permanent ( fixed conditions ), the order is therefore usually based on an obligation to be separated from it , which it fulfills ( purchase , gift , bequest , etc.).

Tax treatment

When assessing a usufructuary right for tax purposes, a distinction must be made between grant and reservation usufruct:

Beneficial benefit

In the case of usufruct, the owner orders a usufruct in favor of the beneficiary on his property. In future, the usufructuary and no longer the owner will earn income from renting and leasing the property should the property be rented or leased to a third party. However, in the case of free usufruct, the usufructuary cannot claim depreciation due to the substance of the building (usufruct decree Item 18-22). In terms of gift tax, the capitalized value of the usufruct is taxable for the recipient.

Reserved usufruct

A conditional usufruct exists if the transfer z. B. a property at the same time a right of usufruct for the previous owner of the transferred property is ordered. In the case of rental property, the donor continues to earn income from renting and leasing, even though the recipient is listed as the owner in the land register. The giver can deduct all real estate expenses incurred by him, including the building depreciation, as income- related expenses to reduce tax. If the conditional usufructuary uses the encumbered property to generate income from renting and leasing, then he is to the same extent as before as owner to depreciation according to § 9 para. 1 sentence 3 no. 7 in conjunction with V. m. 7 EStG (usufructuary decree TZ 41 ff.). As long as the usufruct exists, the donee does not earn any income and cannot claim expenses related to the property for tax purposes.

The burden of usufruct in favor of the donor or his spouse was not allowed to be deducted from the assessment base for gift tax purposes until December 31, 2008 ( Section 25 ErbStG old version ). I.e. the conditional usufruct in favor of the donor was not recognized as a burden on the property, but the gift tax was deferred in this respect. Since January 1, 2009, the usufruct has to be deducted from the tax base (taxable acquisition) and thus has a tax-reducing effect. The premature renunciation of the usufruct without payment fulfills the criteria of the donation i. S. d. Section 7 ErbStG.

Legal consequences and practical significance

In practice, the usufruct is often used in the transfer of property by way of anticipated succession. The transferor gives the successor ownership of the objects, but reserves the usufruct during his lifetime. So that the fruits can be grown, the usufructuary has a right of possession against the owner . There is a legal obligation between the owner and the usufructuary , which obliges the usufructuary to operate properly, to maintain the thing and to insure it. The usufructuary also has to bear the usual public and private-law burdens. Uses that go beyond ordinary entertainment can be demanded from the owner by the usufructuary if the prerequisites for management without an order are met.

The more recent interpretation of § 1041 BGB by the Federal Court of Justice only imposes on the usufructuary those obligations or maintenance payments that are due “regularly, and that recurring within shorter time intervals”. This formula has since been used by the Federal Court of Justice, which also states that an owner living with the usufructuary for rent has to carry out the major modernization measures and work on the roof and compartment himself in addition to the rent, whereby the usufructuary does not have to make advance payments ( " Dolo ... petit " principle). While this protects the usufructuary, it can mean that the owner could incur considerable expenses without having a right of disposal over the property. If a usufructuary right has been granted to a property, the market value of the property decreases , since the owner only has limited power of disposal over the property. Although this means that if the property is sold, existing usufructuary rights are included in the property valuation with a reduction in value, but on the other hand this results in lower taxation.

On the other hand, a judgment of the Federal Social Court protects the owner of a property encumbered with a usufruct in the event of a claim on basic security: the state benefit is granted as a grant and not as a loan.

deletion

A usufruct is deleted by a request for cancellation and a cancellation authorization. The usufructuary's approval for cancellation must be notarized, the usufructuary's application for cancellation only needs to be authenticated by a local court or a notary. (A simple certification e.g. from the registration office is not sufficient.) As a rule, the cancellation approval precedes the cancellation request, and the owner then submits both documents to the local court. The request for cancellation and the authorization for cancellation do not have to be physically linked - for example, they can be submitted separately. It is customary to ask for an unauthorized extract from the land register to be sent together with the application for cancellation. As a rule, the deletion authorization remains in the file at the land registry office; Upon request, it can be returned to the owner after the deletion has been entered in the land register.

International

In Switzerland the term usufruct is used for this legal institution . It is regulated in Art. 745 ff. ZGB . In Austria this right is called usufructuary right and is regulated by § 509 ff. ABGB .

Individual evidence

  1. ^ Brothers Grimm , German Dictionary , Volume 13, 1889, Col. 838
  2. Berchtold Friedrich von Haller, Bern in his Ratsmanualen 1465-1565 , Volume 3, 1902, p. 103
  3. Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 410
  4. ^ BGH, decision of July 14, 2011 , Az. V ZB 271/10, full text.
  5. see also haufe.de: BGH: Usufruct on one's own property is permissible. September 16, 2011, accessed July 21, 2015 .
  6. cf. the so-called usufructuary decree of the Federal Ministry of Finance of September 30, 2013, Federal Tax Gazette I 2013, p. 1184.
  7. ^ BGH, judgment of June 6, 2003 , Az. V ZR 392/02, full text.
  8. BGH, judgment of July 13, 2005 , Az. VIII ZR 311/04, full text.
  9. Effects of usufructuary rights on real estate. Retrieved August 28, 2019 .
  10. a b BSG, judgment of 6 December 2007 , Az. B 14 / 7b AS 46/06 R, full text.
  11. Federal Social Court: House burdened with usufruct - for Hartz IV recipients no realizable assets . Media information No. 42/07 of December 6, 2007