Understanding an Usufruct in South Africa

A Usufruct is a legal institution in which someone, who is not the owner, is given the right to use and enjoy the profits and advantages of something belonging to another as long as the property is not damaged or altered in any way, for a certain period of time. At the end of this period, the property must be handed over to the person who owns it.

A usufruct is basically a life interest which someone acquires in terms of a will. It gives the usufructuary the right to use and enjoy specific assets of the estate for the term stipulated by the testator in the will. An example is where a husband bequeaths a residential property to his children in his will, but stipulates that his wife must/may enjoy usufruct until the day she passes away. In this way, he ensures that his wife has the use and enjoyment of the property.

Rights and Obligations of the Usufructuary.

The usufructuary is required by law to act as a diligent owner that may not misuse the property. The usufruct must be used properly for the purposes intended. She has the right to either live on the property herself or rent it out to generate an income, although the term of the rental agreement may not exceed that of the usufruct. She is responsible for paying the assessment rates and general daily maintenance costs but is not obliged to do large-scale repairs resulting from normal wear and tear. Even if an item were to perish due to daily use, she would not be obliged to replace it.

The usufructuary is also not obliged to insure the property against fire, storm or other damage, although it is strongly recommended to do so, possibly in cooperation with the children/owners.

The 'rights of the usufructuary could cause problems for the children, (the ultimate heirs), because while the usufruct is in effect, the children, have no right and authority with regard to the use or enjoyment of the property. Although it was bequeathed to them, it is subject to usufruct by their mother. They have to refrain from interfering; although they naturally have the right to protect their interests should the usufructuary misuse the property.

Maintenance or repairs and insurance premiums will be for the heirs (the children) account, and they are obliged to ensure that the property is in a liveable condition at all times. This may also cause financial strain for the heirs, as there is often not enough money available to finance such repairs. It is extremely important that the testator (the husband) who bequeaths usufruct should make financial provision for the maintenance of the usufruct asset. Otherwise, he could put an unnecessary burden on the heirs or even cause them financial problems. A life policy is a very cost-effective way of doing this.

 The usufruct lapses when the usufructuary passes away. If the heirs die before the usufructuary, their share of the usufruct assets is transferred to their heirs but remains subject to the existing usufruct.

Selling a property to a family trust or children?  A Ususfruct may save Transfer Duty

In the event that a person needs to transfer a property to his or her Trus or children, the transaction will attract Transfer Duty ?

However, if a Usufruct is registered simultaneously it may results in considerable savings as the the value of the Usufruct must be subtracted from the purchase consideration. SARS will deduct the value of the Usufruct off the purchase price to determine the amount on which transfer duty is payable. The remaining value is called the bare dominium value on which transfer duty is payable. Contact us to find out more.