On many occasions our clients consult us about their legal problems regarding the usufruct on their properties. They come to us with questions, mainly about expenses and usufruct. How does it work under Spanish law? What must be paid by the owner and what by the usufructuary?
In this article we will analyse in a practical way the relationship between expenses and usufruct in a real estate property. In other words, we will explain who pays the expenses of the property when a usufruct has been constituted.
Usufructuary and bare owner
When a usufruct is constituted over, for example, a property, two figures are created: the usufructuary and the bare owner.
The bare owner is the one who has the right to own the property, but can neither enjoy nor use it.
In contrast to the bare owner is the usufructuary. Who is the one who enjoys the usufructuary property? He has the possession on the property and can exploit it economically, ie can rent it out.
So who pays for expenses and repairs?
Having made this clarification, the Spanish Civil Code stipulates that the usufructuary is obliged to make ordinary repairs. Extraordinary repairs, on the other hand, are the responsibility of the bare owner.
Therefore, in order to know who pays which type of expense, we must differentiate between ordinary and extraordinary expenses.
How do we differentiate between ordinary and extraordinary expenses?
The problematic question arises when we want to differentiate between extraordinary repairs and/or expenses and ordinary expenses.
The Civil Code defines ordinary repairs. According to the Civil Code, ordinary repairs are considered to be those repairs required for deterioration or damage resulting from the natural use. And which are indispensable for their conservation.
For example, a type of ordinary expense or repair would be to take care of the painting of the property. Also to repair taps worn out by normal use, or to fix a window worn out by daily use. Consequently, and as these are ordinary expenses, the usufructuary will assume them.
The Civil Code is silent on extraordinary expenses. Therefore, it should be understood, by elimination, that extraordinary repairs are non ordinary ones. So, they are not the result of deterioration or inherent to the normal use of the property.
For example, it would be an extraordinary expense if the swimming pool needed to be repaired structurally, because it’s a construction. In this case it would have to be borne by the bare owner.
And what happens if I cannot distinguish whether it is an ordinary or extraordinary expense?
In Spanish law, ordinary and extraordinary obligations are not listed exhaustively. For this reason, it is evident that in practice, it could be difficult to qualify repairs as ordinary or extraordinary. And thus be able to know who must assume the cost.
Court decisions do not provide a list of ordinary and extraordinary expenses either. But they have provided criteria for discerning between the two. Thus, we can know whether an expense is ordinary or extraordinary according to criteria such as foreseeability, regularity, periodicity, economic importance, etc.
In view of the above, a detailed study of each case will be decisive in order to be able to analyse who should bear the expenses in a usufruct. If you are in a similar situation and would like to get legal advice, contact us.
The information provided in this article is not intended as legal advice, but simply conveys information related to legal issues.
Carlos Baos (Lawyer)
White & Baos.
Tel: +34 966 426 185
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