Usufruct for social solidarity
The law regulates the relationship between community members. It’s often said that a law works as a tool to provide solutions for the problems of human beings. The legal mandates can never be a combination of meaningless and purposeless words.
In fact, laws are tailored in pursuance of social reality. The words, like help, support or social relations have been the hallmarks of Nepali society. The competent Parliament of Nepal has enacted a fair corpus of laws that recognize the prevailing culture of helping and extending support to fellow community members. Of many, there is a law on usufruct which has a robust base on supporting and helping others in good faith.
The usufruct law aims to promote social relations. After all, we have seen a large chunk of people showing social solidarity with the people and the government at the time of their need. On a societal level, many rural folks stay at the flats of their known ones in urban areas for education and employment purposes. This way, our society has been caring and acting in a socially acceptable manner since time immemorial.
This respect, the law on usufruct envisaged under the National Civil Code, 2017 endeavors to protect social relationships and promote fraternity among community members. A usufruct is the combination of two property rights, “usus” (i.e., right to use something without damaging something) and “fructus” (i.e., right to enjoy the fruits of the property being used).
Taking care of other’s property
Section 352 of the Civil Code envisages that the owner of the property—be it movable or immovable—may allow others to use or enjoy his property free of cost. In fact, usufruct is an opportunity created by the owner of a property for his un/known ones to avail the benefits, use or enjoy his property for certain duration in good faith. However, it’s neither the transfer of title, nor is it the transfer of ownership.
It’s like a contract whereby the owner allows the possessor to use or enjoy his property for a stipulated period and return him the same in the same manner and in the same position without causing any damage to it. This respect, it’s a matter of trust excelled by the owner of the possessor.
The consent of other coparceners is necessary while giving any immovable property—like land or trees bearing fruits—in usufruct (Section 354). The usufructuary, the person who uses the property obtained by way of usufruct, shall use or enjoy the property in good faith and adopt due diligence and care of the same (Section 355). The possessor of usufruct is entitled to file a lawsuit for the protection or enjoyment of the property (Section 355(4)).
As the usufruct does not confer ultimate ownership, the possessor is not entitled to make alteration in the substance and form of the property without the consent of the owner. The usufructuary may lend the property on rent, lease or mortgage but with the consent of the owner. There shall be no requirement of written deed in case where the rent amount does not exceed 20,000/- per month (Section 358).
Sections 359 and 360 again remind that the possessor would have a duty to maintain and adopt reasonable care of the owner’s property. Section 361 casts a duty on the usufructuary to clear the bills, like electricity bills or water bills and other taxes. Section 362 provides for the duty of the usufructuary to inform the owner about any encroachment or damage caused to his property.
Above all this, the usufruct cannot be everlasting. In case of natural person, the contract of usufruct would cease at the instance of the death of the usufructuary, i.e., the legal person holding the property by usufruct; or at the completion of 49 years of usufruct contract or whichever is earlier (Section 363).
The usufruct contract comes to an end at the dissolution of any institution; or at the completion of 29 years; or whichever is earlier—in the case of an artificial person. If the usufructure is more than one, the usufruct would deem to be terminated on the date on which the last survivor usufructuary dies. The usufruct would also come to an end at the accomplishment of a purpose..
The owner could terminate or cancel the contract at the instance when it is found that the property in usufruct is not safe or wrongly used, abused or damaged (Section 364). The owner has the power to take his property back in possession at any given time. But, if the usufructuary does not wish to enjoy the property obtained under provision of usufruct, he may return such a property to the owner at any time by giving a notice of at least 45 days (Section 365).
Section 367 is the statute of limitation which prescribes that an aggrieved party (in usufruct) could file a lawsuit within six months from the date of commission of an alleged act.
The usufruct may be established over every kind of property, like movable and immovable property. In Nepal’s case, the general implementation of usufruct law could be seen in case of farmhouses, houses, farming lands, among others. The owner of a property could yield income from his property with the help of usufructuary.
Of late, it’s hard to trust someone. Our society is witnessing cases of criminal breach of trust, cheating, fraud and cases of illegal occupation of property on a daily basis. These incidents have led people to think twice before allowing someone to step into their property as a usufructuary. Nevertheless, our substantive and procedural laws are there to punish the outliers.
“The earth belongs in usufruct to the living,” said Thomas Jefferson. We can think of Jefferson’s earth as a place where a disadvantaged group or possessor (in general) is allowed to use and enjoy the fruits of the owner’s property without causing any damage to it. The mechanism of usufruct provides opportunity for a large chunk of people to reside at other’s place, cultivate other’s farmland, or yield income from other’s property or generate income and benefit for and from the owner of a property.
As a matter of fact, it’s beneficial to the possessor as well as the owner for a number of reasons.
In usufruct, the owner’s property remains safely managed by usufruct and the latter finds it an opportunity to use and enjoy the property of others for a certain period. Secondly, the usufructuary could generate income for the owner by way of lease or other mechanisms but with the consent of the owner. This way, our law endeavors to tighten the bond of social solidarity. It aims to bridge the gap between haves and have nots and attempts to promote fraternity. It’s high time to rejoice the social solidarity among the community members and to promote the message of usufruct, for our society deserves to support each other to survive and thrive in a bond of trust.
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