Can a Usufructario make a Donation of their Usufruct or Life Interest during their lifetimem for example to another family member?If so, do the terms of the Usufruct remain the same for the new Usufructario as it was when the original Usufruct was drawn up?
Hi Sir, The usufructuario can use his right as he wants, he could donate it sell it, or wathever he wants, the only limits its his own right. The formality is go to the notario and make it
Dear sir, my question to you was kept brief due to the size of the box I had to type my question into. By the nature of the question regarding the 'Donation of a Usufruct', this must hve given you some indication that there was more to this question. Therefore I will add the beginning and end to my original question. Hopefully it will paste into this box, otherwise if you provide me with an address email or otherwise, I can send you a copy of my original question in its entirety.
In 1988, my parents, having sold a property in England, put the proceeds of the sale of their property into what they thought was a purchase of the ground floor of a Villa in Javea, Alicante. The villa was on two floors, each with their own entrance, the ground floor entrance was on the main road, while the upstairs entrance was around the corner in a side road, the villa being built going up a mountain road. The upper half of the villa was supposedly being purchased by their daughter (my sister), and her husband. What really happened was that mum and dad were made 'Usufructarios', and my sister and her husband were the 'Bare Owners'.
It was never explained to my late parents what exactly ‘Usufruct' really meant, or what rights as 'Usufructarios' they may have had. Mum and dad just thought they owned the ground floor of the villa, and my sister and her husband owned the 1st floor of the villa. This meant that when mum and dad's other children and their families came to visit them, the males camped out where they could, and the females stayed in the 2nd bedroom of mum and dad's apartment. It was only when my late father went to see a solicitor with regards XXXXX XXXXX a Will, that he found out that he 'Owned Nothing', the solicitor's words, not mine.
From then on dad, then mum, then my other two sisters and me, sought a resolution to the problem of what would happen inheritance wise when both parents had passed on. Firstly we tried to get our sister to sort out something, but she remained adamant that the whole of the villa should belong to her when mum and dad had passed away.
When dad passed away in 2002, mum and I saw quite a few lawyers in the hope of resolving the situation but with no luck. In 2008 my mother decided that she would have one more try at trying to resolve the situation that she had found herself in, a situation that had been robbing her of any peace since dad had passed away in 2002. My late mother saw a lawyer in Denia who, thought, he might be able to provide a solution to the problem. After consulting what we thought must have been a ‘Higher Authority'. He contacted my mother and said that there was a possible solution to her problem and this was for my mother to make a 'Donation of her 'Usufruct' or 'Life Interest' to her remaining three children.
Sadly mum passed away in January of this year, since returning to the United Kingdom at the end of February, my sister and her husband are adamant that the villa belongs to them and have had the locks changed on the villa, and have been gradually stripping my late mother's apartment bare.
My late mother had spent a considerable amount of money over the past ten years on various improvements to her apartment, as well as the high costs of maintaining such a large villa. My late mother installed central heating, which included a new Casita to store the ten large gas bottles to run the central heating. Mum also had to have a complete new kitchen as the kitchen floor collapsed; the tiles on the walls also had to be replaced as the original tiles just kept on falling off.
In addition to the expenditure over the past ten years, mum had recently spent a considerable amount of money on new beds, terrace furniture, fridge, cooker and electrical light fittings prior to her passing away. The reason for doing what she did was not only because these items needed replacing, but it was my late mother's intention for her home to become the home of her remaining three children when she passed on
I will try and cover as many angles and scenarios as possible in asking my question.
My question is this. Can a Usufructario pass on their 'Life Interest' or not?
If so, how does it work?
Does the ‘Original Usufructario' give up all their rights etc when passing on their ‘Usufruct'?
Does the ‘Donation of Usufruct' become a ‘Whole New Usufruct', starting for the ‘New Usufructor' or ‘Life Interest' holder from the day the ‘Donation' was made, and to the end of the ‘New Usufructario's' life, with all the same rights and privileges as the ‘Original (and first) Usufruct?
Or does the ‘Original Usufructor' just pass over the remainder of their ‘Life Interest' which would then end when that ‘Original Usufructario' or ‘Life interest' holder dies?
If the above were the case, why was this not picked up when the ‘Donation of the Usufruct' was being Notorised?
The Lawyer acting on behalf of my sister in regaining the whole of the property in Javea, is the same lawyer that my late mother used in 2004 to make her Will. It is this lawyer that is stating that under the Spanish Civil Code number so and so, a ‘Usufructario' does not have the right to pass on their ‘Usufruct' and that the ‘Usufruct' is now ended as my mother has passed away therefore my sister is entitled to do as she wishes with the villa. This same lawyer informed my other sister who lives in Luxembourg that he had told the same to my lawyer who is acting for me in executing my late mother's Will. The lawyer who is executing my late mother's Will is also the same lawyer that had the original ‘Donation of Usufruct' drawn up in 2008.
At first I was prepared to just sit and wait until my late mother's Will had been executed and take things from there. Prior to leaving Spain to return back to England, I had arranged for someone to take care of the villa in my absence, so the sister who is the ‘Bare Owner' of the villa had nothing to worry about with regards XXXXX XXXXX security etc of the villa. In other words she could have waited at least until mums Will had been executed, instead of which she is already taking over, and considering that she had no contact with her late mother for the past eight years because of the dispute over the ownership of the villa, I find her actions a bitter pill to have to swallow and cannot just sit back and let my sister strip my late mother's apartment bare without knowing whether this ‘Donation of Usufruct' that mum had made in 2008 was valid or not.
I can of course let you have a scanned ‘Simple Copy of the Donation' for your perusal if you want it.
I forgot to mention that our youngest sister to whom the ‘Donation of Usufruct' also included, has refused to speak to her sister in Luxembourg and me, she also has the same lawyer acting on her behalf as is the other sister who is the ‘bare owner'. So whether this sister has done a deal with her other sister, nobody is being told anything at present.
Many thanks for your help and advice.
There are two kinds of legal business here
The usfructo, and the inheritage law.
Well, the usufructo works like a rent contract, the nude owner is the person who has the propiety and the usufructuario the person who rents
Well, onces the usufructuario is passed, the usufructo ends and the propiety go to the nude propietary
That is like usufructo works.
Then we got the money what your mother spent on the hause, questions are to be solved by an english solicitor, because the law used is ther same as tour mother law
Each country has its own rules about inheritage, I can give you my opinion about how it works for spanish people, but these law does not fit your case
If you got more questions about usufructo I can explain it but not inheritage with your own law
Thankyou for your answers, but things still look a little foggy at the moment.
The first answer you gave stated that a Usufructario could do what they liked with their 'Life Interest'.
But your next answer, if I am reading it correctly states that when a 'Usufructario makes and kind of donation of their 'Usufruct'. Then the Usfruct ceases to exist, the property reverts back to the 'Bare Owner' and in my late mother's case, had my sister been aware of this, then she could have either thrown mum out, or charged her rent for staying there.
When the Donation of the Usufruct was made, my sisters and I were told that mum had given up her Usufruct in favour of her other three children, and we each had a third share to do with as we willed or to keep until we died.
I have in front of me a copy of the bill that was paid at the time. This stated that Mrs XXXXX XXXXX had paid the sum of 3,780 Euros for all costs involved in the "donation" of the Usufructo to her children on her property in Javea.
The money is the sum of the different costs involved in the matter:
Donation taxes paid to the Generalitat Valenciana for the tranfer of this right.
Notary Fees for the title deeds of the donation.
Notary fees for two power of attorney documents signed.
Land Registry fees for the inscription of the deeds at the Javea land registry.
If as you have stated, the Usufruct ceased to exist the minute my late mother passed it over, then for what did she pay the above fees for?
If things are indeed as you say, then some one at the beginning of this chain has made a very, very big mistake, especially with regards XXXXX XXXXX our late mother think that by spending this amount of money to donate her Usufruct to her remaining three children, that she had effectively protected her interests, which was the ground floor apartment etc, and had put a stop to her other daughter grabbing everything when she died.
There was never any dispute over my sister owning the 1st floor apartment, as far as everyone was concerned she had paid for that, albeit via a mortgage, whereas mum and dad had paid for theirs outright in 1988.
Our gripe was that for our sister'sr half share of the cost of the villa, our sister, when both parents had died, would get the value of the whole villa, that is both the ground floor apartment, grounds and garage plus the swimming pool, and her apartment on the 1st floor. Hence the need to get things rectified before it was too late, hence how we came to end up thinking that finally mum had acheived something, but now, if I am reading correctly this is not what happened and she would have been better off either spending her 4,000 Euros on herself or giving the money to charity.
Once again Sir, thank you for your help in this matter.
As your mother was only the usufructuaria, she only could give away the same right she had, the usufructo
Once she passed, the usufructo is over and the propiety goes to the nude propietary
The fees you mean are the ones to make the usufructo
The main problem was to give the nude propietay only to one of the sons
But is is how the usufructo works
We are nearly there. Am I right in what I am about to say:
My late mother passed over to her three children HER right of Usufruct, had she of been younger and lived for another hundred years, then we would have enjoyed HER original right of Usufruct for the next 100 years or so. But when mum passed away, this original right of Usufruct that she first had in 1988 ceased to exist!
In other words nobody has gained anything as we never took advantage of using the right of Usufruct while mum was still alive, we just let mum live her life her way as she had done since 1988. Upon her death, we all assumed that the mantle of responsibility for the care and maintenance of the villa/apartment, plus the paying of rates etc would then pass on to her other three children.
Now of course I can see that we are the losers and my sister and her family are the one's to gain from our late parents investment. Had all this been made clear to me, even as late as this year, I would have stripped my late mother's apartment bare, as it was I left her home as a home. Silly me.
If you have paid a penny after the deceased you have paid without have to do it, because it was not your hause anyway.
Thats the fact, the hause is not of yours and you have paid bills of the owner.
Ask for the money undebted pay, may be you could get it back.
Its a civil action enrichment without cause or unjust enrichment.
Many thanks Senor for all your hard work, the answer you have given of course is not the one i would have liked to hear, but at least now I am clear and understand things a lot better, it's a bitter pill to swallow, but swallow i must.
The lawyer who is executing my late mother's Will and who executed the Donation of the Usufruct in the first place must have been under the illusion that the Usufruct carried on with my late mother's three children after the Donation was made.
Since he has been acting for me over the execution of my late mother's Will, I have asked him on several occassions to make our position clear, that is are we 'Usufructario's' or not, he never gave us a satisfactory answer.
You Sir have explained everything very clearly and so now I can just move forward and get on with my life here in England.
Once again Senor, many thanks for all your hard work.
Hi Sir, I know its not easy for you to manage
In Spain, may be even ilegal the things done by your mother
In these web you fiond in spanish the usufructo rules
If yoy copy/paste in a mecanical translator mab be you will got a better idea about usufructo
Many years ago when I first started the quest of finding a resolution to my parents problem, an Abogoda in England told me that the law of 'Usufruct' was a 'Mine Field, and he said that he had known (future Abagoda's), at University spending the whole of their Universty years and beyond just studying the 'Laws of Usufruct'. And yet here you are, not only providing me with a right answer, but also directing me to a website that will explain to me exactly how 'Usufruct' works.
Even though I have not been on this website yet, I am grateful forth e information that you have so far supplied.
I came across 'Spain Law', simply by Googling 'Terms of Usufruct' etc. What a joyous day that was!
Now do I continue to allow the lawyer who wrongfully led us to believe that the 'Donation of Usufruct' was the answer of our prayers, carry on with the execution of my late mother's Will, or do I find an alternative lawyer?
If I allow thiscurrent lawyer to carry on with the execution of my late mother's Will, I will then have to make him face his mistakes, and then, instead of (trying), to sue the pants off of him, just explain that rather than sue him for any mistakes made in the past , here was a way that, maybe he could make up for those mistakes by claiming something back from the other side!
Once again Senor, I take my hat off to you and say 'Muchas, Muchas, Gracias'.
Its incomprensible, usufructo its used for the person you married but not to put benefits one son over the rest. In Spain is forbidden. May be in England also, but you should ask an english attorney.
The spirit of the usufructo is to protect the widower / widow against the sons, but no to destroy the family at all
Thank you. I am sorry.
How I wish I met or heard of you a long time ago. My abogado is in hiding. There was a time, like you, when I could send an email night or day, and then receive a reply via his epad at any time during the night. Later, if you could get hold of him, he would say that he was busy and that he would ring you back, but he never did. No matter how fortunate you were in getting him on the end of the phone, he was always too busy to speak to you. When the " Ring me at 11am tomorrow" was trotted out, you knew that if you rang once, his secretary would tell you to ring again at a certain time. To phone this abogado, it was never before 10.30am, and no later than 12 noon!
What time was your last reply Senor Apam?
Dealing with you Senor Apam has giving me a little faith back in the Spanish legal system.
Well I am these kind of people who enjoy a good job. Sometimes the best price is to know you are helping somebody. I enjoy these web site, I feel good helping people to find a lost way. Believe me, justice is not at court, do not look for it there.
Thank you, I will be here if you need some more little help.
You and I are two of a kind. You are an Abagodo, and I a simple carpenter. But each of us love what we do, and we would rather go hungry than disapoint someone.
Money only makes the world go around for some people, for others, it is the simple pleasure of bringing a smile to their faces and a little sunsine into their lives.
Thankyou Senor Apram for restoring my faith in humanity.
I am just a person, no more. I like my job, so as the latin aforism dum podamus laboremus bonum As we got time do it well
Thank you again
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