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Rights and Obligations of the Usufructuary and of the Bare Owner

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Rights and Obligations of the Usufructuary and of the Bare Owner Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN Rights and obligations of the usufructuary and of the bare owner Ciprian Raul ROMIȚAN PhD, „Romanian-American” University of Bucharest, Romania Partner of “Ros & Co” Law Firm [email protected] Abstract: The usufruct is that main, essentially temporary real right, granting its holder, referred to as usufructuary, the right to use the property(-ies) (i.e., the prerogative of use the property(-ies) belonging to another and the prerogative of enjoying its fruit), subject to the obligation to preserve its substance and return the property(-ies) to the owner upon the expiry of the usufruct. The bare owner and the usufructuary are not co-owners of the property and the usufruct right arises as a result of subdivision of the ownership attribute and the passing of the two elements, possession and use, which form the attribute of use, from the owner to the usufructuary. The study presents a number of rights and obligations of the usufructuary and of the bare owner regulated in the Civil Code. Keynotes: usufruct; bare owner; usufruct right; usufructuary rights; usufructuary obligations; rights of the bare owner; obligations of the bare owner. Framing subdomain: Civil Law Introductory concepts and regulation Usufruct is defined in to art. 703 of the Civil Code, as being “the right to use another person’s property and to enjoy its fruit, just like the owner, but with the obligation to preserve its substance” [1]. According to some authors, expressed in the specialized literature prior to the adoption of the Civil Code in force [2]” usufruct is “that main real right giving its holder (referred to as the usufructuary) the possession and use of the property belonging to another person (referred to as the bare owner) under the obligation to preserve the substance” [3], “that derivative main real right, essentially temporarily, on the property or properties belonging to another person, which confers on its holder, known as usufructuary, the possession and use attributes and obliges it to preserve its substance, and to return to the owner on cessation of the usufruct” [4] or “a real right of use in one thing belonging to another and which shall expire at the latest on the death of the usufructuary” [5]. After the entry into force of the current Civil Code, the specialized literature also analyzed and defined the usufruct right. Thus, according to some authors [6], usufruct is that “main, essentially temporary real right, granting its holder, referred to as usufructuary, the right to use the property(-ies) (i.e., the prerogative of use the property(-ies) belonging to another and the prerogative of enjoying its fruit), subject to the obligation to preserve its substance and return the property(-ies) to the owner upon the expiry of the usufruct” or “subdivision of the right of private property, of temporary nature, wich grants its holder the attribute to hold another person’s property as usufructuary, as well as the attribute of use (ius utendi and ius fruendi) on that property, including the possibility of ceding the emoluments of this use, with the duty to preserve its substance, attributes which must be exercised observing material and legal limits” [7]. It results in other words that the bare owner and the usufructuary are not co-owners of the property and the usufruct right arises as a result of subdivision of the ownership attribute and the passing of the two elements, possession (usus) and use (fructus), which form the attribute of use, from the owner to the usufructuary. Without the two elements (usus and fructus), the property becomes a bare property [8]. Title III, art. 709-745 Civil Code (Dismemberments of the ownership right) Book 3 (On properties) regulates a series of rights and obligations of the usufructuary and of the bare owner which are going to present and analyze herein after. = ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN 1. Rights of the usufructuary Civil Code regulates in detail the following rights of usufructuary, which, as an author claims [9], are in fact “mere manifestations” of the attribute of possession (usus) and attribute of use (fructus): - the right to require the bare owner to hand over for use the property which is the object of the usufruct. According to Article 709 Civ.C, usufructuary has the right to use the property exclusively. In order to realize this right, the usufructuary shall have the right to ask for and obtain from the bare owner or his/her successors, where the usufruct was created by a legacy clause, the handing over of the property which is the object of the usufruct. If the handing over of the property is not done voluntarily, the usufructuary may proceed with a confessory action against the bare owner or his/her successors. On the grounds of Article 705 Civ.C., the confessory action for usufruct may be brought against any person preventing the exercise of the right, even against the owner who constituted the right of usufruct. The usufruct on an immovable property may also be defended by the possessory actions, and if the usufruct was born of the contract, the usufructuary may ask the owner to hand over the property by personal action [10]. - the right to use the property exclusively and to enjoy its fruits. As provided for in Article 709 Civ. Code, unless otherwise stipulated, the usufructuary shall exercise the powers of exclusive use of the property and the collection of the fruits produced by it. By the act of constitution, as stated in a case [11], it can be established that ”use shall be exercised by both the usufructuary and the bare owner.” The prerogative of using the property shall be exercised by the usufructuary under the same conditions as this one is exercised by the owner [12]. As it results from the interpretation of Article 728 Civil Code, the usufructuary’s right to collect the fruits produced by the property, object of the usufruct, exists from the date of the establishment of the usufruct. The right to collect fruit extends to all categories of fruits: natural and industrial fruit (art. 710 Civil C.) and civil fruits (art. 711 Civil C.) [13]. Thus, according to the provisions of Article 710 Civil C., the natural and industrial fruits ”collected after the usufruct was constituted belongs to the usufructuary, and those collected after the usufruct had been extinguished shall belong to the bare owner, without being able to claim each other compensation for the costs incurred in producing the fruits.” Regarding the civil fruits, according to Article 711 Civil C. these ”are due to the usufructuary pro rata with the duration of the usufruct, the right to claim them being acquired on a daily basis.” In other words, civil fruits are distributed between the usufructuary and the bare owner by reference to the duration of the usufruct right, whether or not they have been collected. The rules set out in Article 710-711 Civil Code are supplementary which means that, by virtue of the principle of will, the parties may derogate from their contents [14]. If the usufruct includes young forests intended by their owner for periodic cutting, pursuant to Article 717 (1) Civil Code, the usufructuary may exploit these forests, but it is obliged to maintain the order and the size of the cutting, in accordance with the rules laid down by the owner according to the legal provisions [15]. Regarding the exploitation of tall forests, pursuant to Article 718 (1) Civ. Code, the usufructuary may, in accordance with the legal provisions and the usual use of the owner, exploit the parts of tall forests which have been intended for regular cutting, whether such cutting is carried out periodically on a specified stretch of land, or is carried out only on a number of trees selected on the whole surface of the fund. In other cases, as may be provided for in paragraph 2 of the same article, the usufructuary may not cut the tall trees; however, it may use accidentally fallen trees to carry out the repairs which he is forced to perform; for this purpose, he may even cut the necessary trees, but with the duty to establish, in the presence of the bare owner, this need. At the same time, in accordance with the provisions of Article 719 Civ. C. the usufructuary may take props from forest for the vines, as well as annual or periodic produce of the trees, in accordance with the usual use of the owner, within the limits of the legal provisions. According to the art. 720 Civ. C., the holder of the right of usufruct is entitled to fruit trees which wither and those accidentally fallen but having the duty to replace them with others. Finally, as it is also stipulated in Article 721 Civ.C., the usufructuary has the right exactly as the bare owner of stone and sand quarries that are in exploitation on the constitution of the right of usufruct [16]. - the right to assign the usufruct. Under Article 714(1) Civ.C., unless otherwise provided, the usufructuary may assign his right to another person without the consent of the bare owner. The assignment of usufruct right shall become enforceable on the bare owner, only from the date on which it was notified, with two consequences, namely: = ISSN 2285-0171 ISSN-L=2285-0171 Acta Universitatis George Bacovia. Juridica - Volume 9. Issue 2/2020 - http://juridica.ugb.ro/ - Ciprian Raul ROMIȚAN - according to art.
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