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Usufruct may foil farm purchase

Written for YourProperty

A reader who is contemplating purchasing a farm has approached the Property Poser panel.

Wisely, he has done a little homework and requested a copy of the title deeds to determine whether they contain anything that might be prejudicial to him should he proceed with his intended purchase.

The reader explains that a third party has a usufruct, registered against the title deed, over an undeveloped portion of the farm. Other than noting the existence of this usufruct and the identity of the holder, no further details are recorded.

He would like to know what the rights of the holder of the usufruct are and, more specifically, whether the usufruct entitles the holder to build on the land. This would be an important consideration should the reader intend farming the land.

A usufruct is what is known as a limited real right, says Grant Hill of Miller Bosman Le Roux Attorneys in Somerset West, Cape Town.

"It is limited in the sense that it does not comprise a complete bundle of rights as one would have, for example, with unencumbered ownership."

Hill says a usufruct entitles the holder to the use and enjoyment of the burdened property as if he or she were the owner.

"But the holder cannot alienate the affected property without the consent of the owner of the bare dominium, which is the part that remains once the rights of the holder are taken out."

The usufruct attaches to the holder thereof and is inalienable, other than in an instance where the titleholder of the land and the holder of the usufruct act jointly in the sale of the land to a third party purchaser, says Hill.

The holder should use the property falling under the usufruct for the purpose the rights were granted, says Schalk van der Merwe from Rawson Properties in Somerset West.

"If the holder of the usufruct won't part with the right, the reader should consider approaching him or her to lease the rights under the usufruct and in that way recover full access to the land rights."

Van der Merwe says this would seem a little counterintuitive however, as the reader would already own the land.

"If he proceeds with the purchase, he must remember that the land and the enjoyment of it are currently separated."

The land on its own would be quite useless to the reader without also having the enjoyment thereof, as well as the rights to the fruits of that land, says Van der Merwe.

"Should the reader not acquire the rights of the usufruct, he would technically not be entitled to farm the land as this could infringe on the usufruct holder's right of enjoyment."

Van der Merwe says the usufructuary would also be entitled to the fruits of the land.

To ask a property related question, visit www.yourproperty.co.za.

Issued by:

Full Stop Communications

Coetzee Gouws
082 575 7991
041 368 4992
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www.fullstop.co.za

On behalf of:

Rawson Properties Helderberg and Miller Bosman Le Roux Attorneys
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