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THE RIGHT OF USUFRUCT

  • 06/03/2022
  • |   5970 Views


COEFFICIENTS


What is the right of usufruct and what is it for? The right of usufruct is a right in rem to enjoyment in which a person (usufructuary) benefits from the enjoyment of another person's property, drawing the fruits thereof, provided that the economic purpose of the property is respected (Art. 981 of the Civil Code).

It may be constituted for life, within the limits of the life of the usufructuary (the beneficiary), or for a term (but not exceeding 30 years if constituted in favour of a company).

The subject matter of usufruct may be movable property (including consumable property, so-called 'quasi usufruct') or immovable property; when immovable property is encumbered by usufruct we speak of 'bare ownership'.


MODES OF ESTABLISHMENT

The right of usufruct may be established in several ways:

- ex lege (legal usufruct of parents over their children's property);

- voluntary incorporation (by deed between living persons or by will);

- by usucaption.

When the usufruct relates to immovable property, it must be in writing, on penalty of nullity, and transcribed.


EXTINCTION EVENTS

In addition to the expiry of the term, the right of usufruct lapses in the following cases:

- 20-year limitation period for non-use;

- death of the usufructuary;

- consolidation (or confusion): merging of usufruct and bare ownership;

- total loss of the object of the usufruct; - serious abuse committed by the usufructuary on the property subject to the right (alienation, neglect that has caused its deterioration, etc.).

The temporal limitation of the right of usufruct does not allow it to be transferred mortis causa.


TYPES OF USUFRUCT

A joint usufruct exists when several persons have joint ownership (pro rata) of the relevant right to a given property and the parties unequivocally provide for the right of accretion: if the right of one of the joint owners ceases to exist, his share increases that of the other joint owners. If, on the other hand, there is no accretion, on the death of the joint owner the respective share is consolidated with the bare ownership.

The usufruct is successive if it is reserved to more than one person living at the time of the creation of the right in such a way that, at the death of each of them, it is succeeded by a second designated person.

In mortis causa successions, the legacy of subsequent usufruct is not permitted: the law allows it only in favour of the first persons called upon to enjoy it on the death of the testator (Art. 698 Civil Code).


RIGHTS AND DUTIES OF THE USUFRUCTUARY

The usufructuary has possession of the property and the right to draw its natural and civil fruits. It can also:

- make improvements;

- assign the right of usufruct;

- constitute mortgages on the right;

- lease the property subject to the usufruct.

In the event of termination of the usufruct, the tenancy shall continue provided that it is evidenced by a public deed or private deed of earlier date, subject to the above time limits:

not later than five years after the termination of the usufruct, if this is due to the death of the usufructuary;

limited to the current year, in the event of termination of the usufruct due to expiry of the term.

The usufructuary has the following obligations:

- respect the economic purpose of the asset;

- provide for the routine maintenance of the property;

- pay income taxes (IRPEF, IMU/TASI).

On the other hand, the bare owner is responsible for extraordinary maintenance costs and property taxes (purchase, inheritance).


USE, HABITATION AND LOAN

The right of usufruct differs from the right of use (1021 cc) in that the latter grants the holder, known as the 'usuario', the enjoyment of the property and the possibility of reaping its fruits only within the limits of his or her own and his or her family's needs.

The granting of the right of habitation allows a person, the so-called "habitator", to inhabit a house within the limits of his and his family's needs (there is never any possibility of deriving income from the property).

The rights of use and residence cannot be:

- transferred;

- leased;

- foreclosed;

- seized.

The rules on usufruct shall apply to the right of use and habitation mutatis mutandis.


USUFRUCT AND BARE OWNERSHIP

When a property is encumbered by the right of usufruct, the right of ownership is emptied: enjoyment of the property is reserved for the usufructuary.

This is why it is called 'bare ownership', as opposed to 'full ownership'. The right of usufruct is proportionate to the value of the full property on the basis of certain coefficients of merit.

As you can see from the table above, this coefficient is progressive and inversely proportional to the age of the usufructuary: the older the usufructuary, the lower the value of the usufruct and the higher the value of the bare ownership. 


Example

. market value of the property: €3 00,000.00

. age of usufructuary: 60 years (completed)

. applicable coefficient: 48,00

Consequently, the value of the usufruct and full ownership will be 8€10,000.00 and €10,000.00 respectively. 120.000,00.


USUFRUCT AND ORDINARY ANNUAL INCOME

The value of the usufruct right can also be estimated from the ordinary annual income that the property is capable of producing, such as rent.

The latter is derived from the average rent recorded in the area where the property is located. The annual fee is then reduced by the amount attributable to the expenses incurred by the usufructuary (e.g. those relating to the administration and ordinary maintenance of the property).

The sum thus obtained shall be apportioned to the number of the remaining duration of the usufruct.


VALUATION OF RIGHTS OF USE AND DWELLING

The estimation of usufruct rights also applies to rights of use and dwelling: property encumbered by the right of dwelling is estimated as if it were encumbered by usufruct.

In the case of additions, the usufructuary, usuary or habitator are entitled to receive from the owner an indemnity relating to the difference between spent and improved.


THE NEW LEGAL INTEREST RATE

Pursuant to the decree of the Minister of Economy and Finance of 13 December 2021, as of 1 January 2022 the rate of legal interest pursuant to Article 1284 of the Italian Civil Code is set at 1.25% per annum.

The adjustment of the coefficients to the new legal interest rate of 1.25% takes place only for the application of registration, mortgage, cadastral, inheritance and gift taxes of:

- perpetual and fixed-term annuities;

- usufruct rights for life or for a fixed term;

- rights of habitation and use.

These coefficients shall be applied to public deeds drawn up, judicial deeds published or issued, authenticated private deeds and non-authenticated private deeds submitted for registration, successions opened and gifts made on or after 1 January 2022.


DETERMINATION OF THE TAX BASE

For the purposes of applying the above-mentioned taxes, the new tax base is calculated as follows:

full ownership value of the property encumbered by usufruct/housing/use x legal interest (1,25%) x table coefficient in relation to the age of the beneficiary


CONCLUSIONS

Knowing how to value the rights of bare ownership, usufruct, use and habitation is important in order to assess the attractiveness of an investment property, both on the seller and owner sides.

The choice of the most appropriate solution depends on the specific needs of the client: if, for example, the buyer intends to satisfy a purely residential need, it is advisable to purchase the right of habitation rather than bare ownership.

If you need advice, please contact us and we will help you to resolve your doubts.

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