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Usus, Habitatio

What is Usufruct, Bare Dominium, Usus, Habitatio and their Differences?

In South Africa we have 11 official languages but this helps little when it comes to legal terms! People are often not sure what the meaning is of Latin words such as Dominium, Usufruct, Usus and Habitatio. Usufruct, Usus and Habitatio are known as “personal servitudes”, which in turn is a limited real right in favour of a person, granting that person the right “to do something” on someone else’s property. Let us explain:

What is Bare Dominium?

A bare dominium, is property without a right of use (usufruct). This means that the owner of the property can only sell it with the consent of the usufruct so as not to infringe on the usufructuary‘s use rights.

What is a Usufruct?

Usufruct  is a combination of two Latin words: usus (use) and fructus (fruit) which means “use and enjoyment.” Usus denotes the right to use something directly without damaging or altering it, and fructus denotes the right to benefits that result from the use of the property. A usufruct is a legal right granted to an individual or party for a temporary right to use someone else’s property and generate income or profit in doing so. This is a limited right found in many mixed and civil law jurisdictions. A usufructuary is a person who has rights on a property through a usufruct (as explained above), and is allowed to use and enjoy the income resulting from the use of the property but it does not mean that person has ownership.

What is Usus?

Usus (Use) grants a person (and/or members of his family) the right to use another’s property, but without altering the essential characteristics of that property.

What is Habitatio?

As is the case with usus, habitatio (or residence) gives individuals and their families the right to live in someone else’s home without changing the essential characteristics of the property. In contrast to usus however, habatio allows property owners to lease properties and residence terminates upon expiration of a fixed term or death of a beneficiary.

It still sounds Greek to me, so what is the difference?

  • A bare dominium is ownership without a right of use (usufruct). You can sell only with the consent of the usufructuary, otherwise you will have to disenfranchise him.
  • Usufruct: You may use the property of someone else to your gain, but you will not be allowed to acquire ownership of the property itself. An example is where a husband bequeaths a residential property to his children in his will, but stipulates that his wife should enjoy usufruct until she dies. This way the husband ensures that his wife still has the use and enjoyment of the property. As usufructuary you may not do anything detrimental to the property, but you may use it to your benefit, provided that the property is used in the manner it was planned to be used (for instance farming).
  • Usus: usus is similar to a usufruct but your rights are more restricted. You may use movable property and you and your family may occupy it if it is immovable. You may also “use the fruits of the property” as long as it is not detrimental to the property itself. You may not sell or lease the property or benefit from its fruit. However,  should the house be too large for you, you may let a portion of it for rent. Combining a usufruct with usus gives you full ownership and use of the property (i.e., owner of the property in a more general sense).
  •  Habitatio: You and your family the right to live in someone else’s home without changing the important qualities of the property. The habitatio ends when a fixed period has expired or on the death of the holder of the right.

We recommend that, before you buy or rent a property, you first review the title deed to establish whether there are any rights of habitation or other limited real rights registered against it. Even better – obtain the input of a legal professional!

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.