Print Friendly, PDF & Email

What Is Usufruct / Usufruto?

Usufruct in Brazil is something that can be enjoyed, that is to say something you can benefit from, something you can use and harvest; something you can temporarily have and avail of. Usufruct comes from the Latin “usufructus”, meaning “use of fruits.”

It is important to check if there is an Usufruct ("Usofruto" in Portuguese) registered before buying a real estate property in Brazil. If you buy a property with Usufruct rights assigned to someone else, you wouldn't be able to use the land until the assignee person entitled to the Usufruct rights had died.

In the legal field, “usufruct” is the right granted to a person for him or her to be able, for a definite period of time (e.g.: until the death of the usufruct rights holder ("usufrutuário" in Portuguese), in an inalienable and non-attachable manner, to usufruct something belonging to a third party as if it were his or hers, under the condition that substance or destination are not altered and assuming the obligation to ensure its integrity and preservation.

Usufruct in the Civil Code

Usufruct is a property element included in the provisions of the Brazilian Civil Code, from article 1.390 to article 1.411. “The usufruct may be over one or more assets, whether personal or real property, whole estate or part of it, including rewards and benefits, either partially or in full.” Article 1.391 reads: “For real property, the usufruct, when not resulting from adverse possession, shall be constituted through registration in the Real Estate Registry Office.”

The usufructuary has the right to possess, use, administrate and receive the benefits. The usufructuary may obtain the benefits personally or by means of leasing, as long as the economic destination is not altered without explicit authorization from the owner.

Before assuming the usufruct, the usufructuary is responsible, at his or her own expense, for inventorying goods to be received and determining their condition. The procedure resembles similar to an inspection report for property leasing. The usufructuary shall also have the duty to provide occasional repairs, if necessary.

Lifetime Usufruct

Lifetime usufruct is a donation with usufruct reservations, made in a Registry Office in Brazil, by which the owner may transfer the ownership of a property to a third party, still having the right to continue using and administering such property. This mechanism is widely used by parents who want to transfer their properties to their children in life.
The usufruct may also be legalized through a will, where goods are already transferred in life with usufruct reservation, and the person receiving the donation cannot sell the property received while the donor is alive.

Two parties are consolidated when formalizing a lifetime usufruct: the “bare owner”, the person transferring the property but keeping the right of use, administration and receipt of all benefits arising from such property; and the “usufructuary”, the person receiving the property as donation, who is guaranteed such property will be cared for and administered by the usufructuary. If the property is not properly cared for, the bare owner may request usufruct cancellation.

Usufruct Extinction

The usufruct becomes extinct upon cancellation of its registration in the Real Estate Registry Office in Brazil, in accordance with several criteria, including: usufructuary’s resignation or death; during its term of duration, extinction of the legal person in favor of which the usufruct has been constituted; or, if it continues, expiration of a period of thirty years from the date in which it became effective, or due to usufructuary’s fault, if he or she alienates or deteriorates the property.