Habitatio, Usus, and Usufruct: Understanding the Key Differences

Some rights also known as personal servitudes can be registered in favour of a person.  These personal servitudes include habitatio, usus, and usufruct and is often used in estate planning to preserve a right in favour of an heir without leaving him or her the actual property.  There is a difference between a habitatio, usus, and usufruct and we are looking into the differences in this article.  

1. Usufruct

A usufruct can be described as a limited real right to use and enjoy the land which is not registered in the name of a person.  The holder of this usufruct is called the usufructuary and the registered owner of the property is called the bare dominium holder.  

Where the fruits are natural, industrial, or civil, the usufructuary may take, eat, or alienate them. This implies that the usufructuary has a right to all land products as well as all earnings and income from the property.  For instance, on a farm setup, all animal products, such as milk, wool, or eggs, as well as the young of the animals, would belong to the usufructuary. By collecting them themselves or having someone else do it on their behalf, the usufructuary gains ownership of both natural and industrial fruits. However, growing crops must first be collected and removed from the soil since they are considered a component of the soil rather than fruits.

The heirs of the usufructuary do not inherit any fruits that were not collected at the end of the usufruct. A usufruct can be registered for a specific period or for the lifetime of the usufructuary and will lapse at the end of the period or when the usufructuary pass away.  

The owner (bare dominium holder) cannot take any action that may jeopardise the rights of the usufructuary.  The usufructuary must approve any additional acts taken by the owner in relation to the property, such as selling it or registering a mortgage bond. The property may be mortgaged by the owner and usufructuary, or the usufructuary may waive his or her preference to the bank.

Key Features of a Usufruct:

• The usufructuary may use the property as if they were the owner, provided they do not diminish its substance.

• They may lease the property or earn income from it.

• They are responsible for maintaining the property and paying rates, taxes, and other charges associated with it.

• The usufruct is usually granted for a limited period, often for the lifetime of the usufructuary.

• The property must be returned in its original condition (reasonable wear and tear excepted) upon termination of the usufruct.

2. Usus

A usus is a more limited right than a usufruct. It grants a person (the user) the right to use the property and fruits for their own needs but does not allow them to earn income from it.

Key Features of Usus:

• The user may live on or use the property but cannot rent it out or exploit it for financial gain.

• The right is typically granted for personal use and does not extend to commercial activities.

• Like usufruct, usus is usually granted for a specified period or lifetime.

3. Habitatio

Habitatio is a specific right that allows a person (the holder) to reside in another person’s property. It is broader than usus in that the holder may let out the property but does not have full usufructuary rights.

Key Features of Habitatio:

• The holder may live in the property and even rent it out to others.

• Unlike usufruct, the holder does not have the right to exploit the property for other financial gains.

• The right is typically granted for life or a fixed period.

• The property owner retains ownership but must respect the rights of the habitatio holder.

Source list:

The Practitioner’s Guide to Conveyancing & Notarial Practice by Allen West.

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Written by: Gustav Snyman
Moderated and approved by: Jean-Mari De Beer – Le Grange

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