1. General
Usufruct grants the right in rem to draw all the benefits from the object (land) encumbered with it (section 1030 of the Civil Code). According to § 100 of the Civil Code, benefits are the fruits of a thing or a right as well as the advantages which the use of the thing or the right confers. Usufruct is by its nature an easement, but in contrast to other easements it gives the beneficiary the right to extensive use of the thing.
The usufruct of a property gives rise to a legal obligation between the owner and the usufructuary, which is regulated in §§ 1030 ff. BGB. The statutory rights and duties of the obligation of usufruct may be modified by contractual agreements with in rem effect, provided they do not violate the essence of usufruct. Usufruct as a right in rem is to be distinguished from purely legal rights of use under the law of obligations. In contrast to usufruct as a right in rem, agreements on use under the law of obligations only have effect between the parties. They only give the beneficiary an obligatory right to benefit, similar to a lease agreement. The usufruct gives the beneficiary an authority under property law to draw benefit.
The usufruct of land plays a very special role. This is particularly true in the case of anticipated succession, i.e. in the case of transfers of real estate and businesses. The transferor reserves the usufruct, i.e. the comprehensive use. In the case of succession, a usufructuary bequest can be created instead of an anticipated succession and a usufructuary bequest can be created instead of an anticipated succession and a usufructuary bequest. In the area of a family, income can be shifted through the creation of usufruct. Special attention must be paid to the tax problems always associated with this. The creation of a usufruct may be based on a transfer agreement, a disposition upon death, a purchase, a security agreement or other legal relationships under the law of obligations as the obligation under the law of obligations to create the usufruct.
2. Origin and form
Usufruct of real property comes into existence by agreement and registration (§ 873 BGB). The creation of usufruct does not require any form. However, the usufruct is only entered in Section II of the land register on the basis of an application under § 13 (1) of the Land Register Code and an authorisation by the beneficiary under § 19 of the Land Register Code. The authorisation must be submitted to the land registry in notarially certified form in accordance with section 29 of the Land Register Code.
Usufruct may be granted for the lifetime of a beneficiary. It may also be granted subject to a condition precedent or a condition subsequent and also for a limited period. The underlying legal relationship under the law of obligations requires the form of the underlying transaction. If the appointment is connected with the obligation to sell or acquire a plot of land, the underlying transaction under the law of obligations requires the form of notarial certification.
3. Creation by operation of law
Usufruct can also arise by operation of law, e.g. by adverse possession (§ 900, section 2, Civil Code).
4. Transfer/seizure/impairment
Usufruct is in principle not transferable. Exceptions to this are the transferability in the case of legal persons or partnerships with legal capacity (§§ 1059a ff. BGB). It is not heritable. It expires upon the death of the usufructuary (§§ 1059, 1061 BGB). On the other hand, the exercise of the usufruct may be transferred to a third party (§ 1059 BGB). The transfer is possible in its entirety or for individual uses. It does not need to be expressly permitted by the owner. In the case of land, the transfer of the exercise of usufruct cannot be entered in the land register. However, the exercise of the usufruct may be excluded and entered in the land register. A usufruct is attachable. An exclusion of the power of transfer does not prevent this. The attachment may be entered in the land register. If the usufruct is impaired, the provisions applicable to claims arising from ownership apply to the usufructuary's claims (§§ 1065 BGB in conjunction with §§ 985, 987 - 987 BGB). §§ 985, 987 - 993, 994 - 1003 and 1004, 1005 and 1027 BGB).
5. Object of encumbrance
Usufruct may be granted on
- Real property,
- an ideal fraction of the land
- heritable building rights,
- rights equivalent to real property,
- condominium ownership/partial ownership,
- rights to use permanent residences,
- shares in inheritance,
- mortgages,
- a property (§ 1085 BGB), the right must be established by individual acts,
- a share in a civil law partnership.
The usufruct may - as with an easement - be limited to the exercise of a partial area of a plot of land. It is also permissible to create a usufruct over the entire plot of land, but for a mere fraction (quota usufruct).
6. Cancellation and extinction
The usufruct may be cancelled at any time by legal transaction. The usufruct expires upon the death of the beneficiary and, in the case of legal persons and a partnership with legal capacity, upon their termination. The usufruct shall expire upon the occurrence of an agreed condition subsequent or the expiry of the term in the case of a fixed term.
In the case of compulsory auctions of the encumbered property, the usufruct expires with the fall of the hammer if it is not to remain in existence according to the auction regulations (section 91 (1) ZVG). The usufruct remains in force if a subordinate creditor conducts the forced sale. The beneficiary of a usufruct that has expired by acceptance of a bid is entitled to compensation for the value from the auction proceeds.