Table of Contents (21)
- Constitution and termination of usufruct
- Rights and obligations of the usufructuary
- Obligations of the usufructuary
- Make inventory
- Provide bail
- Keep the thing
- Constitution of usufruct by public deed
- To establish a usufruct
- Forms of constitution of usufruct
- By law
- Voluntary usufruct
- By prescription
- Deed of constitution of usufruct before Notary
- Documentation for the establishment of usufruct
- Term for the establishment of the usufruct
- Extinction of usufruct
- Causes for the termination of usufruct
- Cancel the usufruct before a Notary
- The role of the Notary in the constitution and extinction of usufruct
- Documentation for the deed of usufruct termination
- Process a deed of constitution of usufruct and extinction of usufruct before a Notary
Constitution and termination of usufruct
Real estate and contractual procedures are common actions in our Notary Office in Barcelona, with the constitution of usufruct and extinction of usufruct being among the specialties of our notarial services in Barcelona. Therefore, we want to introduce you to matters related to usufruct and how to process it step by step.
Rights and obligations of the usufructuary
Rights of the usufructuary
Usufruct consists of having the right to use and enjoy an asset, without owning it, receiving the fruits of the usufructed asset. Therefore, for example, the usufructuary of a house may live in it or rent it out and receive the rents. Likewise, the usufructuary of an investment fund or money will produce the returns generated by the investment fund or the money.
The usufructuary also has disposal powers, so they can sell their usufruct right alone (although to sell full ownership the usufructuary and the bare owner must sell jointly) and it can be donated to a third party. They can also mortgage or lease the usufruct right.
Obligations of the usufructuary
The main obligations of the usufructuary are as follows:
Make inventory
This obligation, which can be waived by the grantor of the usufruct, and in fact this waiver is the most common, consists of determining and listing the assets of the usufruct. This inventory can be made judicially or notarially, the latter being the usual method if there is no conflict between the parties. It will describe the usufructed assets and their condition as fully as possible, although their valuation is not necessary.
Provide bail
The usufructuary's bond is a guarantee required from the usufructuary at the time the usufruct is established. Its purpose is to ensure that the usufructuary will fulfil their obligations, such as the care and maintenance of the usufructed asset, as well as the payment of charges and taxes that correspond to them.
The bond protects the bare owner (who retains ownership of the asset) against possible damage or deterioration that the usufructuary may cause during the time they have the right to use and enjoy the asset. If the usufructuary fails to meet their obligations, the bare owner can make use of the bond to cover the damages or losses suffered.
However, according to article 493 of the civil code, The usufructuary, regardless of the title of the usufruct, may be exempted from the obligation to make an inventory or to provide a bond, when this does not cause harm to anyone.
Keep the thing
The usufructuary has the duty to keep and preserve the thing, and to refrain from carrying out any act that may harm or destroy the usufructed thing. This means that the usufructuary must assume the ordinary repairs needed for the things given in usufruct. However, extraordinary repairs are the responsibility of the bare owner, although the usufructuary must notify them of the need to carry them out when they are urgent.
The usufructuary must also pay the taxes corresponding to the use and enjoyment, although the bare owner must pay those corresponding to ownership. Thus, in the case of usufruct of a dwelling, the bare owner will assume the IBI (property tax) and the usufructuary will assume the rubbish tax and community expenses, unless otherwise agreed.
Once the usufruct ends, if it has not been extinguished by death, the thing that was in usufruct must be delivered to the bare owner. If the usufruct is extinguished by the death of the usufructuary, the delivery will be made by the heirs of the deceased usufructuary.
Constitution of usufruct by public deed
As we have analysed, usufruct allows the use and enjoyment of a property without being its owner. The moment at which the right of usufruct must be established as such should be regulated in the constitution of usufruct, a document that must be formalised in a public deed before a Notary. However, there are some usufructs that are established directly by law.
The legislation on usufruct is found in the Second Book of the Civil Code of Common Law. Meanwhile, in Catalan Law the fundamental article is 561 of Book V of the Civil Law Code of Catalonia. We will examine these regulations below.
To establish a usufruct
One of the most common ways in which a person can enjoy a usufruct is through an inheritance (for example, in the case of the surviving spouse in intestate successions or testamentary dispositions), a couple's separation (in which the spouse living with the children can judicially obtain the usufruct) or a contract. In fact, in recent years, there has been an increase in the sale of homes by elderly people in exchange for remaining as usufructuaries of their home. To access this situation, a sales contract is entered into with the buyer in exchange for a rent that improves the pension of these people. The buyer is often a relative or a banking entity that becomes the bare owner of that place until the usufructuary dies.
Among the most common usufructed assets are homes, although there can also be usufructs of tangible goods, rents or shares and stakes in companies, among others. When a usufruct is established, and using the home again as an example, the ownership of the property does not change, but the person who holds the usufruct (the usufructuary) can live in it, paying the expenses derived from its use (maintenance or renovations) or rent it out.
Therefore, as a conclusion, we can say that usufruct is a right over a thing and that if there is a usufruct there will always also be a bare owner, who is the one who has the ownership of a thing whose usufruct belongs to another.
Forms of constitution of usufruct
Thus, we distinguish three modes of constitution of usufruct:
By law
It is known as legal usufruct or widow's usufruct and refers to the "usufruct of the widowed spouse", which is the only one contemplated by the Civil Code of Common Law, by which the usufruct of the improvement third is granted. It is very important in practice. It is a lifetime usufruct, so that upon the death of the person who receives this usufruct, this right will be received by the bare owner, who upon also recovering the usufruct will become full owner.
In Catalan law, there is no legal usufruct in favour of the spouse granted by law.
Voluntary usufruct
It is a consequence of the will of individuals: this refers to the will expressed by individuals in different types of legal acts or transactions. These can be inter vivos or mortis causa:
- Inter vivos acts: the will of usufruct is disposed of by act or contract. The agreement between the interested parties is known as contractual usufruct (one of the most common is establishing the bare ownership of a dwelling) while the disposition of the usufruct by one party is known as unilateral usufruct. It can be constituted for valuable consideration (in exchange for something, for example, sales contracts) or gratuitously (nothing should be paid to receive it, for example, in cases of donation).
- Mortis causa acts: the constitution of usufruct occurs by will or intestate succession. Thus, sometimes the so-called dismemberment of ownership occurs, whereby the allocation of the bare ownership of a property and its usufruct to different persons is known.
In Catalonia, in practice, it is common for one spouse to establish usufruct in favour of the other, whether of the couple’s habitual residence or of the entire inheritance.
It is important that the deed constituting the usufruct or the will states whether the usufructuary is exempted from making an inventory and from providing a bond.
By prescription
Usufruct is established as a real right of possession when acquired by usucaption or acquisitive prescription (the usufructuary becomes the owner through prolonged use of the asset).
Deed of constitution of usufruct before Notary
When processing the usufruct of a property, it is necessary to formalise it in a public deed in order to then register it in the Land Registry. The public deed constituting the usufruct will include the duration and reasons for the termination of the usufruct, the rights and obligations of the parties involved, or the amount of the deposit if required.
Documentation for the establishment of usufruct
On the day of the appointment you must provide the following documentation:
- Valid ID card of the owner and the usufructuary.
- Deed of ownership of the property: identification and data recorded in the Land Registry.
Term for the establishment of the usufruct
Usufruct can be established for a determined period and can be lifelong or temporary. For the temporary, a date will be set in the deed; the lifelong will last as long as the life of the usufructuary.
Which leads us to the following question: can usufruct be extinguished?
Extinction of usufruct
Well, the answer is yes. The extinction of usufruct is regulated in article 513 of the Common Law Civil Code and in article 561 of Book V of the Catalan Civil Law Code.
The extinction of usufruct ends the enjoyment of the asset that had been granted. For this reason, various causes are established for which it may occur.
Causes for the termination of usufruct
The causes for the termination of usufruct are:
- The death of the usufructuary: the termination of usufruct due to the death of the usufructuary ends both the deed of constitution of usufruct, whether lifelong or temporary.
- The expiry of the stipulated term. In the case that a temporary usufruct has been stipulated, the end of the agreed term in the deed causes the termination of the usufruct.
- The fulfilment of the resolutory condition. In some constitutions of usufruct, conditions may be set for the usufruct.
- The termination of usufruct by renunciation of a usufructuary (although it has limitations). In this case, renunciation may be requested due to rescission for creditor fraud or if the property has a mortgage, the usufructuary cannot terminate it until it is paid off or until the usufruct ends.
- The consolidation in the same person of usufruct and bare ownership of the property in question.
- Extinctive prescription: in this case the usufructuary ceases to exercise the right.
Cancel the usufruct before a Notary
To proceed with the termination of the usufruct, for example, in life usufructs, a public deed of termination of usufruct must be processed. Remember that, if you are the bare owner, you must also carry out the consolidation of ownership of the property, which consists of restoring the usufruct once it has ended. Likewise, the death must be registered in the Property Registry and the usufruct must be cancelled in the registry.
In practice, it is common that in the inheritance deed of the person who had a usufruct, the termination of this usufruct is recorded and that the Property Registry is requested to register the termination of the usufruct and its consolidation in the bare owner, who becomes the full owner.
The role of the Notary in the constitution and extinction of usufruct
The Notary is a legal professional with extensive training and long-standing experience. Among their functions is to advise and counsel impartially and free of charge.
Applying total impartiality, the Notary's mission is to inform all parties involved equally, providing greater assistance to the party that needs it most. Whatever the procedure or notarial act being considered, it is advisable that the interested party, when doubts arise, does not hesitate to make the necessary enquiries, both on the day of signing and in the days prior.
Documentation for the deed of usufruct termination
The necessary documents are the following:
- Valid DNI.
- Death certificate of the usufructuary person (if applicable).
- Deed of ownership of the property.
Other questions related to the constitution and termination of usufruct
Yes, the usufruct can be sold by the usufructuary, provided that the usufruct is not personal (a personal usufruct is one that has been prohibited from being transferred in the deed constituting the usufruct).
However, for the full ownership of a property to be sold, it will be necessary for both the usufructuary and the bare owner to sell to the same person. Part of the price will go to pay the usufructuary for the usufruct right they are selling, and another part of the price will go to pay the bare owner for the bare ownership they are selling. Although any agreement can be made, it is usual to divide the price between the usufructuary and the bare owner following the fiscal valuation rules for usufructs.
The taxation of the establishment of usufruct will depend on the manner in which it is constituted. In this way, we can find several scenarios:
- Constitution by inter vivos acts and free of charge: Taxed by denomination tax.
- Constitution by inter vivos acts in exchange for a price: Taxed by ITP.
- Constitution by mortis causa acts: Taxed by Inheritance Tax.
It has been questioned what happens if a usufruct is constituted when it falls on a first transfer of a dwelling and whether this constitution is taxed by VAT, for example, when it is a first transfer of a dwelling and one acquires the usufruct and another the bare ownership. For this case, the Directorate General of Taxes resolved that the bare owner would be subject to VAT, while the "usufruct corresponding to the part of a building intended exclusively for housing deserves the qualification of a supply of services subject but exempt from Value Added Tax; therefore, it is subject to ITP."
On the other hand, in the case of usufructs where the usufructuary receives income from it (for example, if it is rented out), they must declare this income in the IRPF (Personal Income Tax).
Upon the death of the usufructuary, the bare owner in onerous transfers must pay the Property Transfer Tax (ITP), whereas in gratuitous transfers they must pay the Inheritance and Gift Tax (ISD).
Upon renunciation by the usufructuary, the bare owner must pay ISD if it is considered a donation and depending on the constitution of the usufruct. If it was inter vivos, ITP is payable. In cases of mortis causa, ISD is payable. The usufructuary must pay donation tax.
Upon the reunification of usufruct in a single person, tax may be payable under Income Tax (IRPF), ITP or ISD.
It depends on whether it is temporary or lifelong:
If it is temporary: 2% of the value of the asset is calculated for each year of duration of the usufruct right, up to a limit of 70% of the value of the asset.
In the case that it is lifelong: the age of the usufructuary must be taken into account to calculate the value of the usufruct. The percentage of the value of the asset is derived from the number 89 minus the age of the usufructuary. It also has a limit: the maximum will be 70% of the value of the asset and the minimum 10%.
The drafting of the notarial document for the establishment of usufruct (as well as for the extinction of usufruct) adheres to the notarial fees which regulate the fees of Notaries under the regulatory legislation of the NOTARIAL FEE SCHEDULE (RD 1426/1989, of 17 November, regulating the Notaries' Fee Schedule).
The exact price of a notarial document cannot be calculated until its specific content is known, that is, until it is signed, as there are many circumstances that can cause it to vary. The value of the asset in usufruct, the age of the usufructuary, the number of copies requested of a document, the number of pages it contains, as well as possible changes or additions, can slightly alter the final price.
If you wish to receive a detailed quote, we invite you to contact us directly through the method that is most convenient for you. You can do so via the contact form on the main page of this website, through the contact section found in the footer of the website, using the direct WhatsApp access at the bottom right of this page, by sending an email to bcn@jlanotarios.com or by calling us on 93 159 17 62.
Process a deed of constitution of usufruct and extinction of usufruct before a Notary
The drafting of the deed of constitution of usufruct and extinction of usufruct is one of the procedures we specialise in at our notary office in Barcelona. Processing it requires a high level of expertise to ensure it is completed in the most appropriate way and to avoid subsequent problems. The deed of constitution of usufruct can be processed separately or included within a will. Likewise, the deed of extinction of usufruct can be managed separately or within an inheritance deed. Whatever your case, we will study it carefully and take the most appropriate solution, complying with the law and ensuring the lowest possible tax payment.
Thanks to the training and experience of the entire team, at JLA Notarios we provide the most suitable legal solutions in the different areas affecting the individual and their assets, with the aim of offering you free advice in your consultations. With a close and cordial approach from the first contact, at JLA Notarios we work dynamically and empathetically, seeking maximum efficiency and the best profitability for each client, addressing the concerns of each person or company in a personalised manner for their full satisfaction. To this end, at JLA Notarios we apply new technologies in all procedures, minimising visits to the notary and optimising processing times. For this reason, we have also transformed into an online notary office.
So please get in touch with us via our email or through the contact form on our website. You can also consult our wide range of Real Estate and Contractual Services in Barcelona and we will assist you with whatever you need.
JLA Notarios-Notaría Barcelona is a notary office located in Barcelona and we specialise in the constitution and extinction of usufruct, whether on its own or within a will or inheritance deed. We will be delighted to assist you and help you with whatever you need. We hope this text has been helpful and valuable to you.
By your side in the moments that matter
Contracts and property law
Over the course of our lives, we carry out important actions, such as buying a home, declaring a new-build, lifetime gifting to our children or ending partnerships, among many others.
At JLA Notarios we are experts in property and contract law and buying and selling property. We guide our clients, analysing each particular issue and always considering the tax burden of each transaction.
In addition, some of our notarial services can be performed online, so we can assist you from anywhere in Spain. Contact us to declare a new-build or a commonhold ownership structure online.
Inheritance and wills
The moment of granting a will, making a declaration of heirs or formalising an inheritance are very important moments in people's lives.
At JLA Notarios we offer services related to succession law, both to arrange your succession and to distribute an inheritance, guaranteeing the best advice tailored to your particular needs and the study of the tax implications of each case. At no time do we neglect the human factor, even offering home notary services if necessary.
Mortgage
Taking out a mortgage is one of the biggest moments for anyone. Just think of the fees and interest you may have to pay for much of your life. So it is essential to have a trusted notary to help you understand what you are signing, explaining the tricky legal terms and their future consequences in simple words, to provide transparency and protect our clients.
At JLA Notarios we are aware of the importance of giving complete and understandable information to people about to sign a mortgage, novation or subrogation. We also advise and guide you on your future mortgage cancellation.
Loan agreements and credit facilities
Individuals and companies often need money to fulfil their dreams or projects. This can be obtained by taking out a loan or credit facility with your bank. When you sign, it is essential to understand the details properly to avoid future surprises.
JLA Notarios can be your trusted notary office, giving you accurate advice on loan contracts, providing a very agile and specialised service for processing loan contracts.
Bear in mind that from 9 November 2023, you will be able to sign your loan contracts from anywhere in Spain electronically by videoconference with JLA Notarios, saving you time and money. Do not hesitate to contact us to find out more about the notary office’s services in order to sign a loan contract online or sign a credit facility online.
Companies
Without entrepreneurship there is no future, so it is of vital importance to support our businesspeople and entrepreneurs.
At JLA Notaries we are familiar with companies’ life cycle, which enables us to provide legal assistance for companies in their different stages, whether incorporation, modifications of their articles of association, changes of director, share sales and purchases, capital increases and reductions, dissolution and closure, and everything related to commercial matters.
Powers of attorney
There are moments in life when a person needs to delegate. The law provides a tool for this: powers of attorney. Though a power of attorney, one person allows another person to act on their behalf.
At JLA Notarios we make sure that you understand the significance and risks of delegating or revoking powers of attorney, from a special power of attorney or power of attorney for lawsuits, to general powers of attorney or preventive powers of attorney for cases of incapacity.
We provide an agile service to sign powers of attorney. You can take your copy away immediately, saving you unnecessary trips, and from 9 November 2023 our clients will be able to sign all powers of attorney that are not general or preventive by videoconference through our digital notary office.
Family affairs
A prosperous society is based on the family and its protection. Family Law provides you with the tools to protect your family and its members, so its foundations are solid and its purposes can be achieved.
At JLA Notarios we provide legal advice on marriage or civil partnerships; property aspects of the family through marriage contracts or civil partnership contracts; the moments when the family relationship is ended, in cases such as divorce or separation; and protection of vulnerable people, such as minors or people with modified capacity, through deeds of appointment of guardians or executors or creation of protected assets. We do all of this in a way that makes everyone involved feel equally supported and secure.
Certifications and authentications
It is common knowledge that notaries attest. That important and simple action can guarantee things of vital importance, such as ensuring that the signature on a document is authentic or certifying that a copy of a document matches the original.
At JLA Notarios we will help you to certify a document or notarise a signature in accordance with the law and tailored to your specific needs.
In addition, these notarial procedures can be carried out conveniently through electronic means from 9 November 2023.
Minutes
How many times have you wanted to leave a record of an event, of a statement, of the condition in which an object is found, or notify someone of any matter. To provide a solution to these issues, the Law provides us with notarial records.
At JLA Notarios we adapt to you, reflecting in the record what you require and carrying out the notifications and requests that you demand.
Oath of Nationality
Behind every nationality oath there is a story of overcoming, sacrifice and waiting.
At JLA Notarios we understand what this moment means and offer an empathetic, agile and fast service, advising beyond the oath itself, anticipating the future requirements that the new Spanish citizen will need.
We are your reference Notary to carry out the nationality oath before a Notary in Barcelona.
Hague Apostille
One of the main effects of globalisation is the increase in international acts and transactions, and the exchange not only of information but also of documentation between different States and between individuals. Therefore, procedures that facilitate and speed up this exchange are necessary, as is the case with the Hague Apostille in Barcelona.
Tax and registry procedures
Tax bureaucracy can cause a lot of headaches.
So JLA Notarios offers its clients the possibility of assessing and paying the many different taxes by the executing deeds and carrying out other procedures before the notary. We can also file them with the Land or Companies Registry so you do not have to concern yourself with it and can spend your time on the things that matter. We support you from start to finish.
Contracts and property law
Over the course of our lives, we carry out important actions, such as buying a home, declaring a new-build, lifetime gifting to our children or ending partnerships, among many others.
At JLA Notarios we are experts in property and contract law and buying and selling property. We guide our clients, analysing each particular issue and always considering the tax burden of each transaction.
In addition, some of our notarial services can be performed online, so we can assist you from anywhere in Spain. Contact us to declare a new-build or a commonhold ownership structure online.
Inheritance and wills
The moment of granting a will, making a declaration of heirs or formalising an inheritance are very important moments in people's lives.
At JLA Notarios we offer services related to succession law, both to arrange your succession and to distribute an inheritance, guaranteeing the best advice tailored to your particular needs and the study of the tax implications of each case. At no time do we neglect the human factor, even offering home notary services if necessary.
Mortgage
Taking out a mortgage is one of the biggest moments for anyone. Just think of the fees and interest you may have to pay for much of your life. So it is essential to have a trusted notary to help you understand what you are signing, explaining the tricky legal terms and their future consequences in simple words, to provide transparency and protect our clients.
At JLA Notarios we are aware of the importance of giving complete and understandable information to people about to sign a mortgage, novation or subrogation. We also advise and guide you on your future mortgage cancellation.
Loan agreements and credit facilities
Individuals and companies often need money to fulfil their dreams or projects. This can be obtained by taking out a loan or credit facility with your bank. When you sign, it is essential to understand the details properly to avoid future surprises.
JLA Notarios can be your trusted notary office, giving you accurate advice on loan contracts, providing a very agile and specialised service for processing loan contracts.
Bear in mind that from 9 November 2023, you will be able to sign your loan contracts from anywhere in Spain electronically by videoconference with JLA Notarios, saving you time and money. Do not hesitate to contact us to find out more about the notary office’s services in order to sign a loan contract online or sign a credit facility online.
Companies
Without entrepreneurship there is no future, so it is of vital importance to support our businesspeople and entrepreneurs.
At JLA Notaries we are familiar with companies’ life cycle, which enables us to provide legal assistance for companies in their different stages, whether incorporation, modifications of their articles of association, changes of director, share sales and purchases, capital increases and reductions, dissolution and closure, and everything related to commercial matters.
Powers of attorney
There are moments in life when a person needs to delegate. The law provides a tool for this: powers of attorney. Though a power of attorney, one person allows another person to act on their behalf.
At JLA Notarios we make sure that you understand the significance and risks of delegating or revoking powers of attorney, from a special power of attorney or power of attorney for lawsuits, to general powers of attorney or preventive powers of attorney for cases of incapacity.
We provide an agile service to sign powers of attorney. You can take your copy away immediately, saving you unnecessary trips, and from 9 November 2023 our clients will be able to sign all powers of attorney that are not general or preventive by videoconference through our digital notary office.
Family affairs
A prosperous society is based on the family and its protection. Family Law provides you with the tools to protect your family and its members, so its foundations are solid and its purposes can be achieved.
At JLA Notarios we provide legal advice on marriage or civil partnerships; property aspects of the family through marriage contracts or civil partnership contracts; the moments when the family relationship is ended, in cases such as divorce or separation; and protection of vulnerable people, such as minors or people with modified capacity, through deeds of appointment of guardians or executors or creation of protected assets. We do all of this in a way that makes everyone involved feel equally supported and secure.
Certifications and authentications
It is common knowledge that notaries attest. That important and simple action can guarantee things of vital importance, such as ensuring that the signature on a document is authentic or certifying that a copy of a document matches the original.
At JLA Notarios we will help you to certify a document or notarise a signature in accordance with the law and tailored to your specific needs.
In addition, these notarial procedures can be carried out conveniently through electronic means from 9 November 2023.
Minutes
How many times have you wanted to leave a record of an event, of a statement, of the condition in which an object is found, or notify someone of any matter. To provide a solution to these issues, the Law provides us with notarial records.
At JLA Notarios we adapt to you, reflecting in the record what you require and carrying out the notifications and requests that you demand.
Oath of Nationality
Behind every nationality oath there is a story of overcoming, sacrifice and waiting.
At JLA Notarios we understand what this moment means and offer an empathetic, agile and fast service, advising beyond the oath itself, anticipating the future requirements that the new Spanish citizen will need.
We are your reference Notary to carry out the nationality oath before a Notary in Barcelona.
Hague Apostille
One of the main effects of globalisation is the increase in international acts and transactions, and the exchange not only of information but also of documentation between different States and between individuals. Therefore, procedures that facilitate and speed up this exchange are necessary, as is the case with the Hague Apostille in Barcelona.
Tax and registry procedures
Tax bureaucracy can cause a lot of headaches.
So JLA Notarios offers its clients the possibility of assessing and paying the many different taxes by the executing deeds and carrying out other procedures before the notary. We can also file them with the Land or Companies Registry so you do not have to concern yourself with it and can spend your time on the things that matter. We support you from start to finish.
