THE USUFRUCT

Introduction. A usufruct or the right to use and enjoy (together with enjoying the fruits)
of the property involved, has for many years been commonly used in the estate planning
process. In simple terms, a usufruct is a right of enjoyment, enabling a holder to derive
profit or benefit from property that either is titled to another person or which is held in
common ownership, as long as the property is not damaged or destroyed
These have specifically been applied, where the intention of the deceased was to leave
the said property to someone (full ownership), but the use and enjoyment thereof
(including a right to the fruits) for the benefit of another.
Practically speaking, in many families fixed property would, for example, be left to the
eldest son, but subject to a usufruct registered in the name of his mother (the deceaseds
surviving spouse).
This would ensure that his mother could continue to live in and enjoy the
house/property involved (including any benefits or fruits it would yield such as produce
in the case of agricultural land), usually for the duration of her life or in other instances,
for a fixed period of time.
The practicalities
A usufruct, like fideicommissum as an example, constitutes a limited real right to
property. Real rights are defined or rather explained as: a real right that ensures the
owner the opportunity to exert direct influence on an article: he does not require the
actions of anyone else in order to possess, use, or dispose of an article. A real right
belongs to the category of absolute rights. This means that, as opposed to the subject of
a real right, there is an indeterminate number of persons who are obligated not to
obstruct the exercise of the subjects right.
Because a usufruct limits the property owners (the bare dominium holder) ability to
exercise his/her/its real rights (to the property), it has to be registered against the title
deed of the fixed property (house etc) involved. As such, these need to be registered
against the title deed of the fixed property in question in the deeds office. Accordingly,
there are costs involved in registering these rights and once these lapse (with the death

of the usufructory - the mother in our above example) and there are also costs in
removing those conditions from those title deeds. In the event of the usufruct not being
registered, specifically in the instance where the usufruct does not automatically lapse
due to the passing of the usufructory, this may unintentionally limit the next owners
real rights or become the cause of other challenges, which would normally not have
been the intention of the next owner.
Moreover, where the situation is created by a will there may be taxable implications
including, amongst others, the implications of estate duty. This may affect the
deceaseds estate (father in our example), the usufructory or the bare dominium holder
(son in the above example) depending on the circumstances.
In addition, some other practical challenges may arise due to the misconception of the
legal enforceability of claims involving the payment of or rather the collection of levies
in sectional title schemes, where (as an example) the usufructory has not paid.
Moreover, more than one usufruct cannot be registered against a title deed concurrently.
For the above reasons, amongst others, usufructs should not be applied lightly and
without proper consideration in relation to the relevant circumstances at hand.
So what are the alternatives
According to Dr Eben Nel, a potential alternative would be to register a discretionary
inter vivos trust4. This on the basis that trusts could accommodate a number of
beneficiaries and allocate rights to them at the discretion of the trustees and founder. It
could furthermore be structured to optimize tax efficiency so that those implications
would not be relevant, particularly from an income tax and naturally estate duty
perspective. If vesting (to confer or bestow property on someone) is avoided so are
the income tax implications and the trust by its very nature ensures perpetual existence,
is also not a person in the context of estate duty and cannot attract such a liability.
Finally no transfer duty or property transfer costs as the full unencumbered ownership
will be in the property.
With that being said, the solution proposed has not considered the potential for disputes
arising between beneficiaries or trustees for that matter.

For instance, in Vairetti v Zardo NO and Others (12423/2007) [2010] ZAWCHC 146
(12 April 2010), the court had to interpret the meaning of a clause bestowing a limited
real right on one of the beneficiaries (here a usus right of use) in a trust. The clause in
question read as follows:
Notwithstanding the foregoing, the Donor specifically requires and directs that
FRANCESCA ZARDO (born Gennari), the daughter EMILIO GENNARI, shall during
her lifetime have the full use of the property described as Erf 1650 (a portion of Erf
159) Bakkershoogte and that MARIA VAIRETTI [the applicant], the companion of
EMILIO GENNARI, shaft during her lifetime have the full use of the property
described as the remainder of Erf 159 Bakkershoogte as Indicated on the diagram SG
No 3965/1997 approved by the Surveyor General on 3 July 1997. (Emphasis
supplied)
The court found in the favour of the applicant.
As such careful and meticulous drafting along with choosing the most suitable trustees
are key when considering a trust as an alternative to the usufruct.
Conclusion
The use of the usufruct as a tool to give effect to a will or other agreement should, as the
use of trusts, be carefully considered and where elected implemented by a professional
specialising in the field. That way the solution would be tailored considering all relevant
implications.