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Usufruct () is a limited real right (or in rem right) found in civil law and mixed jurisdictions that unites the two property interests of usus and fructus:
A usufruct is either granted in severalty or held in common ownership, as long as the property is not damaged or destroyed. The third civilian property interest is abusus (literally abuse), the right to alienate the thing possessed, either by consuming or destroying it (e.g., for profit), or by transferring it to someone else (e.g., sales, Trade, gift). Someone enjoying all three rights has full ownership.
Generally, a usufruct is a system in which a person or group of persons uses the real property (often land) of another. The "usufructuary" does not own the property, but does have a legally cognizable interest in it, which is sanctioned or contractually granted by the owner. Two different types of usufruct exist: perfect and imperfect. In perfect usufruct, the usufructuary is entitled to the use of the property but cannot substantially change it. For example, an owner of a house can grant a usufruct to a resident; the resident could live in (use) the house, but could not (without the owner's assent) renovate it or tear it down and build a bigger house.
An imperfect usufruct gives the usufructuary some rights to modify the property. For example, if a land owner grants a piece of land to a usufructuary for agriculture, the usufructuary may be given the right to make improvements for agricultural purposes such as building a barn or laying irrigation pipes. This, however, may be ill-advised for the usufructuary inasmuch as they do not own whatever improvements they make and have no claim against the owner for their value, unless this is specifically laid out in the contract creating the usufruct.
In many cases of tenure by usufruct, such as the ejido system in Mexico, individuals or groups may only acquire the usufruct of the property, not legal ownership. Usufructs are similar in nature to common-law life estate, save that a usufruct can be granted for a specified term rather than for life.
Fruits refers to any renewable commodity on the property, including (among others) agricultural goods (literal "fruits", hence the name), livestock, goods produced in a factory, or rents from tenants. These may be divided into civil ( fructus civiles), industrial ( fructus industriales), and natural fruits ( fructus naturales), the latter of which, in Roman law, included Slavery and livestock.
Under Roman law, usufruct was a type of personal servitude ( servitutes personarum), a beneficial right in another's property. The usufructuary never had possession (in the legal sense) of the property (on the basis that if he possessed at all, he did so through the owner), but did have an interest in the property itself for the specified period (either a set term or a lifetime). Unlike the owner, the usufructuary did not have a right of alienation ( abusus), but could sell or lease the usufructuary interest. Even though the usufructary did not hold possessory title, he had a cause of action against infringements on his usufruct rights by a third party, such as theft of goods from the property.
In some now-disused systems of customary law among the indigenous peoples of the Americas, usufruct refers to the legal concept that all land is Public land, but individuals and groups can acquire the right to use certain areas, usually for agriculture. Some cultures held this to be similar in concept to a perfect usufruct; one could not damage the land so as to reduce its future productivity. Ancient examples of usufruct are found in the Code of Hammurabi and the Law of Moses. The Law of Moses forbade landowners from harvesting the edges of their fields, and reserved the for the poor. Leviticus 19:9-10, 23:22.
Thomas Jefferson famously wrote in 1789 that "Earth belongs in usufruct to the living." Jefferson's metaphor means that, like a usufructuary, human beings have the right to use the earth for their own benefit and derive profit from it, but only to the extent that their actions do not impoverish the earth's bounty for future generations. It was, in other words, an expression both of rights (of the living) and obligations (of the living to those yet to be born). Jefferson's use of the word "living" is critical here: he meant that the usufructuaries of the world are those who are alive, not deceased past generations. This idea would profoundly influence Jefferson over the course of his life, and would lead to his acknowledgement that the Constitution of the United States would be revised by future generations, and was part of the reason that the Constitution includes a provision for its own amendment.
1) Distribute the forced estate as is, or convert it into a usufruct
2) Break up the estate into a distributable portion and a usufruct good for the children's lifetime.
If a usufruct is chosen, a value is set for the usufruct interest for inheritance tax purposes and payable by the surviving spouse, with regard to their age. The value of movable property associated with the estate is calculated based on the appraised value of the estate's assets. The value of the surviving spouse's usufruct is subtracted, and whatever balance as remains is divided among the heirs on the death of the surviving spouse. The surviving spouse may do whatever they wish with the movable assets (household items, furniture and the like), with the monetary value of the items going to the children. Title to assets does not pass, and the usufruct is dissolved on death or at the end of a term of years. Trust and usufruct are distinct and subject to different rules. French law is distinct from Roman law in understanding usufructs not as a type of servitude, but rather possessory interests.
The freedom of individuals in a community to appropriate resources merely by virtue of the fact that they are using them
Bookchin contrasts Usufruct with other property relations, saying:
Usufruct, in short, differs qualitatively from the quid pro quo of reciprocity, exchange, and mutual aid — all of which are trapped within history's demeaning account books with their "just" ratios and their "honest" balance sheets.
He pairs the concept of usufruct with complementarity and the irreducible minimum as core to his ethical world view.
What "civilization" has given us, in spite of itself, is the recognition that the ancient values of usufruct, complementarity, and the irreducible minimum must be extended from the kin group to humanity as a whole.
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