Understanding a usufruct – reaping the benefits of property

A person who has a legal right to use and enjoy the profits and advantages of property belonging to someone else, as long as it is not damaged or altered, is said to have a usufruct over that property. This is commonly known as the right of use and is vested in the usufructuary (the person who has the limited real right).



Ownership does not vest in the usufructuary, and therefore it is known as a limited real right. One of the most common usufructs is a life interest which a person acquires in terms of a will.

In Neethling v Brink N.O., a judgement given in the Namibian High Court in 2016, Judge Oosthuizen held that a ‘usufruct is a highly personal limited real right which entitles a person to have the use and enjoyment of another’s property and to take its fruits without impairing the substance. The holder of this right is termed the usufructuary and the property affected is referred to as usufructuary property. Usufruct is commonly employed where a testator wishes to provide an income after his death to one person (for example his spouse), but desires the property itself to devolve upon another person (for example his son).’

In the above matter, Judge Oosthuizen relied on Van der Merwe v Van Wyk N.O. 1921 (a decision of the Full Bench of that Court). It was held that a usufruct is such a personal right that it cannot be ceded to anyone but the owner of the property over which the usufruct exists and that, consequently, it does not fall into the community of property between husband and wife.

It is also important to note that the usufruct lapses when the usufructuary passes away.

In conclusion a usufruct is created when ownership is vested in a certain individual, subject to the condition that another person has a limited real right over that property from which they may enjoy the profits and advantages that property offers.

The Afrikaans term for usufruct is vruggebruik, and the German equivalent is Nutznießung. Both translations point to the same definition: an individual, other than the owner of the property, having the right to the ‘fruit’ or profits.