PRECARIOUS STATUS AND ADQUISITIVE PRESCRIPTION AS GROUNDS FOR TERMINATION OF USUFRUCT
We would like to highlight a recent ruling by the First Chamber of the Supreme Court dated November 6, 2024, Appeal No. 6034/2022, because it is of interest in that it clearly addresses the interplay of the institutions mentioned in the heading.
ALLEGED DEFENDANT
The plaintiff, who was the usufructuary, has filed an action for eviction on the grounds of precarious tenancy against the bare owner. Both had acquired their rights at the same time pursuant to a deed of sale executed by the usufructuary’s mother—who was also the bare owner’s grandmother—as the seller.
In response to the claim regarding the precarious tenancy, the defendant argued that the plaintiff lacked title because the usufruct had been extinguished due to nonuse for more than thirty years (Art. 513.7 of the Civil Code).
The case resulted in two different court rulings—the first in favor of the plaintiff and the second in favor of the defendant—so the matter was ultimately referred to the Supreme Court, which issued the ruling we are now discussing because of its significance.
USUFRUCT
The usufructuary, as the holder of a right that grants him or her the use of the property and the power to dispose of that use, since this right is not strictly personal in nature (unlike the right of use or the right of habitation, Art. 525 of the Civil Code), may, while retaining title to the right, transfer the use of the property to a third party (Arts. 467 and 480 of the Civil Code). In particular, it is permissible for the usufructuary, who has the right to use and enjoy the property, to transfer its use free of charge to the bare owner, who, by virtue of being a bare owner, would not otherwise have the right to use the property.
THE PRECARIOUS
Case law holds that in cases of gratuitous transfers of use where it has not been expressly stipulated that the transfer is for a specific period of time, if no consideration is involved, the title tends to be precarious.
It is the doctrine of the Supreme Court that the status of a person occupying a dwelling that has been transferred without consideration and without a fixed term by the holder of the right of use—to be used by the transferee and his or her family as a family residence—is that of a squatter.
Conditions and Effects of Precarious Employment
In short, when possession of property is merely tolerated by the the owner's indulgence or approval (or, in a broader sense, the holder of a right of use), a situation arises in which precarious.
This occurs when the enjoyment or mere possession of the thing continues without a title and without paying a fee. In these cases, the objection by the holder of the right of use puts an end to tolerance and requires the occupant to return possession of the property. This has been established in various Supreme Court rulings, such as the 134/2017, dated February 28, 300/2015, dated May 28, and 1022/2005, dated December 26, among others.
On the other hand, the proprietary node who possesses the property by virtue of the use granted by the usufructuary is considered immediate owner. Since the possessor’s possession is based on the usufructuary’s tolerance, this does not mean that the usufructuary loses possession of the property, as the usufructuary retains possession in a immediate through the owner node.
For this reason, the usufructuary cannot be considered to be committing a violation by allowing the bare owner to use the property, lack of exercise of its powers that would result in the extinction of its right. Interpreting it that way would imply to deny the usufructuary's right to grant and permit the use of the property to a third party, such as the bare owner, which is a right recognized under the usufruct.
Acquisitive Prescription vs. Precarious Tenancy
The Article 513.7 of the Civil Code provides that one of the ways in which the right of usufruct may be terminated is by statute of limitations. That is, the statute of limitations that extinguishes the real action available to the usufructuary to protect his or her right.
For this to happen, it is necessary that, in addition to the expiration of the thirty years (pursuant to Article 1963 of the Civil Code for real property), there is a possession of the property free of encumbrances. This means that the owner, or a third party, must possess the property without recognizing the right of usufruct, which would allow for its acquisition through adverse possession without the need for a title or good faith.
In this case, we start from the assumption that there is a life estate the plaintiff's right to the home. Furthermore, the defendant's son's use of the home was known and permitted by the plaintiff.
According to Supreme Court case law, when the defendant child and his or her family are living in the home without a title and without paying a fee, a situation arises in which precarious. As a result, an objection by the holder of the right of use terminates the tolerance and requires the occupant to vacate the dwelling immediately.
THE OPINION OF THE CARLOS BAÑO LAW FIRM
It cannot be construed that, by allowing the son—who is the bare owner—to occupy the home, the mother—who holds the right of usufruct—was deprived of the ability to terminate the occupation and reclaim the home.
The only reason the occupant of the residence could have successfully opposed the plaintiff’s claim—which he has not attempted to do in any way—would have been to prove that he has possessed the residence for the period required by law (thirty years), without any interruption, and free of encumbrances.
This means that he had to prove that he owned the home in its entirety and that it was free of any right of usufruct.
It's this one acquisitive prescription which the bare owner should have asserted to terminate the usufruct. However, the usufruct is not terminated simply because the usufructuary permitted and tolerated the bare owner’s use of the dwelling.
The Opinion of Carlos Baño Abogados
Based on our experience in Carlos Baño Law Firm, we believe it is essential to seek the advice of a specialized attorney to address any legal issues related to real estate and property law. In many cases, a lack of information can lead to legal problems that could have been avoided with proper guidance.
Our team of experts is ready to analyze each case on an individual basis, offering effective solutions tailored to our clients' needs. If you have questions about your legal situation or need assistance with a legal proceeding, please don't hesitate to contact us.
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