Usufruct

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The usufruct under Swiss law is a personal servitude, a limited real right . It is regulated in Art. 745 ff. ZGB . It does not correspond to the usufruct of German law, but is in part similar.

The usufruct is the right to movable property, rights, property or property to treat it like property even though it is not property. This means that the usufructuary has the full enjoyment of the thing, the owner only retains the " bare " ownership (so-called nuda proprietas) for the duration of the usufruct .

Emergence

The right of usufruct arises on the basis of a contract or a will through the transfer of the thing or the right to the usufructuary. In the case of land, the usufructuary right is entered in the land register.

Extinction, downfall

The usufruct expires with the complete loss of its object. In the case of real estate, at the latest with the declaratory entry in the land register. An effective waiver (waiver by the usufructuary) is possible beforehand. Other reasons for loss are the expiry of time (if a term has been agreed) or the death of the person entitled. The usufruct can last a maximum of 100 years on the basis of Art. 749 Paragraph 2 ZGB.

transmission

In principle, the usufruct can be transferred to another person for exercise (Art. 758 Para. 1 ZGB). The primary right, on the other hand, is non-transferable (subject to a waiver or a change in rank). The usufruct as a basic right can therefore not be attached. The latter circumstance justifies the equality of the acquisition of a usufruct for payment by the debtor with a donation within the framework of the debt enforcement and bankruptcy law Pauliana .

Maintenance / interest / taxes / duties / insurance

The usufructuary bears the expenses for the normal maintenance and management of the thing, the interest on the capital debts on the thing, the taxes and the levies. The owner has a claim to compensation from the usufructuary for the taxes and duties levied on him. The usufructuary has to insure the usufructuary objects against fire and other dangers at his own expense (cf. ZGB 767).

swell

  1. Art. 745 ZGB in SR. Retrieved December 1, 2009 .
  2. Piotet, easements and base loads, in: Swiss Private Law, Vol. 5/1, Basel, § 90 p. 570 with further references
  3. Art. 749 ZGB in SR. Retrieved December 1, 2009 .
  4. Hand commentary-Bichsel / Mauerhofer ZGB 758 N 2
  5. Hand Commentary-Bichsel / Mauerhofer ZGB 758 N 1
  6. Hand commentary-Bichsel / Mauerhofer ZGB 748 N 6
  7. BGE 130 III 235, 237 February 5, 2004, accessed on December 1, 2009 . Hunziker / Pellascio, p. 308.
  8. Further information on usufruct. Retrieved June 29, 2010 .