What is the difference between a usufruct and a servitude?

19 Jun 2023

Introduction 

A usufruct and servitude are two legal concepts of property rights commonly used in civil law systems. While they both involve the use of property, they differ in scope and nature. This article will discuss the meaning and differences between usufructs and servitudes.

What is a usufruct? 

Usufruct is a legal right that gives a person the temporary right to use and enjoy a property that belongs to another person without damaging or altering the property. The person who holds the usufruct is called the usufructuary, while the property owner is called the naked owner. The usufructuary has the right to use the property for the duration of the usufruct, which can be for a specified period or the life of the usufructuary. The usufructuary can also derive income from the property, as long as this does not damage or alter the property.

When does a usufruct apply? 

Usufruct can apply to any property. For example, a person may hold a usufruct over a house, allowing them to live in the house and use its facilities, but they would not have the right to sell the house or make any significant alterations.

What is a servitude and when does it apply? 

Servitudes, or easements, are legal rights that give a person or entity the right to use another person’s property for a specific purpose. Unlike usufruct, servitudes do not involve the right to use and enjoy the property. Instead, servitudes are limited to particular property uses, such as a right-of-way or the right to use a portion of a property for a specific purpose.

Servitudes can be created in several ways, such as through a written agreement between the parties involved or by prescription, which is the acquisition of a right through continuous use over a period of time. Servitudes can also be transferred or inherited, depending on the terms of the agreement.

Examples of servitude include the right to use a driveway to access a property or to have a utility company install and maintain power lines.

What is the difference between a usufruct and a servitude? 

The main difference between a usufruct and a servitude is the scope of the rights involved. Usufruct involves the right to use and enjoy a property, while servitudes involve the right to use a specific portion of a property for a particular purpose.

Individuals typically hold the usufruct, while individuals, companies, or government entities can have servitudes. Usufruct is also typically created by a written agreement between the parties involved, while servitudes can be made through various means, including prescription and a court order.

Conclusion

While usufructs and servitudes both involve the use of property, they differ in their scope and nature. Usufruct involves the temporary right to use and enjoy a property. In contrast, servitudes involve the right to use a specific portion of a property for a particular purpose. Both concepts are important in our law systems and are used to balance the rights of property owners with the needs of individuals and society as a whole. Consult an Attorney by contacting SchoemanLaw Inc today!

See also:

• What is a usufruct and why is it important?
• What is a usufruct?
• Lean on thy neighbour? – The duty of lateral support
• Registered restrictive conditions find a hole in courts’ omnipotence

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)