Usufruct and Use: Enjoyment, Expenses and Restitution

Overview

An owner can arrange for another person to enjoy property while preserving its substance for eventual recovery. Usufruct (usufruit) provides a real right for that purpose. The beneficiary may receive income, occupy a dwelling or use other property without acquiring the owner's entire entitlement. The arrangement requires close attention to duration, the distinction between capital and income, and the allocation of expenses.

The Civil Code of Québec or CCQ (Code civil du Québec) classifies usufruct and use among dismemberments of ownership (démembrements de la propriété) in art. 1119 CCQ. Article 1120 CCQ connects enjoyment with a duty to preserve the property's substance. A right of use (droit d'usage) has a more limited personal scope under art. 1172 CCQ. Neither right should be translated into a common-law estate or treated as an informal permission without first examining its constituting act.

JurisClasseur Québec, Biens et publicité des droits, fascicule 14, « Usufruit et usage », supplies the principal doctrinal orientation. The lesson organizes the material around decisions that arise during an arrangement: identifying the right, taking delivery, managing receipts and expenses, responding to deterioration, and returning the property. Its examples concern invented facts and apply the Code's distinct rules to each decision.

Learning Objectives

• Distinguish usufruct from use and identify their creation, duration and effects on other persons.
• Allocate receipts, repairs, security and other obligations between the usufructuary and the bare owner.
• Apply extinction and restitution rules to a documented fact pattern without treating every receipt as income or every expense as reimbursable.

Identify the right and its duration

Two holders with different entitlements

The usufructuary (usufruitier) exercises the right of enjoyment. The bare owner (nu-propriétaire) retains ownership subject to that right. They do not each own an undivided share of the same entitlement merely because both hold rights concerning the same asset. The division concerns powers over the property. A purchaser must therefore identify whether the transaction concerns usufruct, bare ownership or both.

Under art. 1124 CCQ, enjoyment extends to the property's accessories and to natural accession affecting an immovable. The usufructuary takes the property in its existing condition. Article 1125 CCQ permits the usufructuary to require the bare owner to stop acts preventing full exercise of the right. The bare owner's alienation does not itself impair usufruct, although publication and the position of third persons must also be examined.

Usufruct may be established by contract, will or law, and by judgment in the cases authorized by law under art. 1121 CCQ. The instrument used must satisfy its own formal requirements. An immovable real right also engages publication under art. 2938 CCQ; art. 2941 CCQ addresses opposability and rank. The file should identify the source of the right, the property, the beneficiaries and the relevant registration, rather than treating the word usufruct in correspondence as conclusive.

Duration, successive enjoyment and transfer

Article 1123 CCQ imposes a maximum duration of 100 years. If no term is stated, usufruct granted to a natural person is for life; for a legal person, the default period is 30 years. The hundred-year ceiling does not give every natural person a guaranteed hundred-year right. The expiry rules must be read with the death or dissolution rules in art. 1162 CCQ and with any valid successive arrangement.

Article 1122 CCQ permits joint or successive usufructuaries and requires the beneficiary to exist when usufruct opens in that person's favour. Joint enjoyment and successive enjoyment require different calendars. Under art. 1166 CCQ, extinction of one joint usufructuary's right benefits the bare owner, whereas successive usufruct ends with the last beneficiary's death or dissolution, subject to the statutory duration limit. The constituting act should identify whose enjoyment begins and ends at each event.

The usufructuary may transfer the right or lease property within it under art. 1135 CCQ. A transfer does not create a fresh unrestricted duration. Article 1136 CCQ permits creditors to seize and sell the respective rights subject to the other holder's rights. Identify what the debtor actually owns before describing the asset available to creditors. Enforcement procedure and any competing security require separate examination.

Establish a reliable opening record

Inventory and security serve different functions

An inventory (inventaire) creates a record of the assets and their condition. Article 1142 CCQ requires the usufructuary to make it according to the relevant administration rules, at the usufructuary's expense, and provide the bare owner with a copy. The constituting person may have made the inventory or granted an exemption, but exemption is unavailable for successive usufruct. Photographs, serial numbers and descriptions of existing damage help make the record useful at restitution.

Article 1143 CCQ prevents the usufructuary from compelling delivery before making the required inventory. The inventory should therefore be planned before possession is expected. A later argument about whether a roof was already defective is easier to assess if the opening record identifies its age, observed condition and available inspection reports. The evidence benefits both parties: it can show deterioration during enjoyment or rebut an allegation concerning an older defect.

Security (sûreté) under art. 1144 CCQ guarantees performance of obligations. Subject to the statutory exceptions, it must be provided within 60 days of opening, through insurance or another form of security. The provision excludes a seller or donor who reserves usufruct and recognizes exemptions for inability to provide security or a stipulation by the constituting person. If the usufructuary's obligations increase, additional security is required unless an exemption applies. The file should identify the applicable exception rather than infer one from the parties' family relationship.

Failure to provide security can lead to sequestration under art. 1145 CCQ. Under art. 1146 CCQ, an unjustified delay in completing the inventory or providing security deprives the usufructuary of fruits and revenues from the opening of usufruct until the obligation is performed. These consequences are distinct from the existence of the right itself and from forfeiture for abusive enjoyment. Specify the failure, the applicable consequence and the facts supporting it instead of describing every initial irregularity as automatic extinction.

Sequestration does not eliminate every possibility of personal use. Article 1147 CCQ allows the usufructuary to seek judicial permission to retain sequestrated movables necessary for use, on an undertaking to return them at the end. The request should identify the particular items and their necessity. It should also distinguish permission to retain those items from relief against the separate consequences of an unjustified delay.

Classify receipts before spending them

Income, capital and timing

Fruits and revenues (fruits et revenus) ordinarily belong to the usufructuary under art. 1126 CCQ. The principle does not mean that every payment reaching the usufructuary becomes disposable income. Article 1131 CCQ treats certain extraordinary gains as amounts for which the usufructuary must account at the end. Article 1132 CCQ similarly requires an account for payment of a claim subject to usufruct. Separate an entitlement to receive money from an entitlement to retain it permanently.

Timing also changes allocation. Under art. 1129 CCQ, fruits attached to the property when usufruct begins are allocated differently from those still attached when it ends, with an indemnity for the relevant production work or expenses. Article 1130 CCQ apportions revenues day by day, regardless of payment dates, but provides a specific rule for dividends declared during usufruct. A bank deposit date cannot replace the legal accrual or declaration date.

For example, a quarterly payment may include revenues attributable partly to the period before usufruct opened. Calculate the relevant days using the actual payment period and the opening date; do not award the entire quarter because the cheque arrived later. Keep supporting statements and distinguish a distribution from repayment of capital. The applicable classification determines whether the usufructuary keeps the amount, shares it proportionally or must account for it on termination.

Article 1133 CCQ assigns the right to increase capital to the bare owner while extending usufruct to the increase. Article 1134 CCQ allocates ordinary voting rights to the usufructuary but reserves votes affecting the substance or destination of the principal property, or ending the relevant entity, to the bare owner. Its allocation of voting rights cannot be set up against third persons. Corporate notices therefore require examination of the actual resolution and coordination between the holders.

Consumption and resource exploitation

Consumable property (bien consomptible) raises a restitution problem because ordinary use destroys the very item delivered. Article 1127 CCQ permits disposal while requiring equivalent property of the same quantity and quality at the end, or monetary value if equivalent restitution is impossible. Article 1128 CCQ separately addresses property that deteriorates rapidly through use: disposal must follow prudent and diligent administration, with restitution of its value at disposal. The two provisions should not be merged into a general permission to sell any asset.

Natural resources require their own inquiry. Articles 1139–1141 CCQ regulate trees, agricultural or forestry operations and mineral extraction. Forestry operations must protect regeneration and require approval of the operating plan by the bare owner or, failing approval, the court under art. 1140 CCQ. Mineral extraction has a different rule linked to repair and maintenance or continuation of a pre-existing income source. Permission to enjoy land does not dispense with these conditions or with applicable public regulation.

Before authorizing a sale or extraction, identify the resource, its previous use, the proposed operation and its effect on substance. An estimate showing immediate revenue is insufficient if the operation prevents regeneration. Conversely, preservation does not require freezing all productive activity. The Code permits particular operations under conditions that connect current enjoyment with the continued existence and usefulness of the asset.

Article 1161 CCQ supplies a particular rule for a herd or flock. If it perishes entirely through superior force and the usufructuary was exempt from insuring it, the account concerns the skins or their value. For partial loss, replacement is required up to the number of the increase. The facts must establish the extent and cause of the loss and the insurance exemption before that special calculation can be applied.

Allocate expenditure and protect the property

Insurance and repairs

Insurance against ordinary risks under art. 1148 CCQ protects the property and involves payment of premiums during usufruct, subject to the stated exception for disproportionately high premiums. It differs from security guaranteeing obligations under art. 1144 CCQ and from insurance a holder obtains personally to secure that holder's own rights under art. 1150 CCQ. Identify the policy, insured interest and beneficiary before deciding who receives and keeps an indemnity.

Article 1149 CCQ ordinarily requires the indemnity paid to the usufructuary to be used to repair the property. In total loss, the usufructuary may enjoy the indemnity. Articles 1163–1164 CCQ also distinguish loss and expropriation: insured total loss and expropriation do not simply produce the same result as uninsured destruction. The insurance policy and the legal cause of the payment belong in the same analysis.

Maintenance repairs (réparations d'entretien) fall to the usufructuary under art. 1151 CCQ. Major repairs (réparations majeures) have the characteristics described in art. 1152 CCQ, including a substantial part of the property and extraordinary outlays. Their classification does not depend solely on the invoice amount. The usufructuary becomes responsible where the major repair results from the usufructuary's act or omission, including failure to maintain the property after opening.

Article 1153 CCQ requires notice to the bare owner that major repairs are necessary. The bare owner is not automatically compelled to carry them out. If the bare owner does so, the usufructuary must tolerate the inconvenience. If the bare owner declines, the usufructuary may perform them and claim reimbursement at the end. Distinguish the power to undertake work, responsibility for its cost and the time at which reimbursement becomes due.

Article 1160 CCQ separately addresses things that have fallen into decay, which neither holder is bound to replace. It also protects a usufructuary exempt from insurance against an obligation to replace or pay for property lost through superior force. This provision requires attention to the cause of deterioration. Age, negligent maintenance and a qualifying external event must not be treated as equivalent explanations merely because the asset is no longer usable.

Improvements, charges and notice

Article 1137 CCQ treats necessary disbursements, as between these holders, according to the rules applicable to a possessor in good faith. Useful disbursements (impenses utiles) follow art. 1138 CCQ: the bare owner retains them without indemnity at termination unless the usufructuary elects removal and restoration, and cannot compel that removal. A proposed renovation should therefore be classified and discussed before payment. An increase in market value does not itself establish a reimbursement right.

Ordinary charges and certain extraordinary charges payable through instalments are allocated under art. 1154 CCQ. Where a succession is involved, arts. 1155–1157 CCQ distinguish the situation of a usufructuary by particular title from one by general title and distinguish capital from interest. Legal costs receive specific treatment in art. 1158 CCQ. These provisions require identification of the nature of each claim rather than a single formula assigning all expenses to the person receiving rent.

The usufructuary must notify the bare owner of third-party encroachment or other infringement under art. 1159 CCQ. Preserve dated observations, notices and evidence of resulting damage. That duty helps the owner protect the property while another person enjoys it. For deterioration, compare the opening record, maintenance history, professional assessments and the alleged cause; a current defect alone does not prove who caused it.

A failed heating system

Factual Scenario

In this hypothetical, Élise has a valid usufruct over an income-producing building and Samuel holds bare ownership. The constituting act leaves the statutory repair rules applicable. A professional identifies an installation defect predating usufruct: embedded heating pipes and the controls require substantial corrective work at extraordinary cost. The system has not fallen into decay and Élise has maintained it properly. Assume no insurance or third-party recovery. She promptly notifies Samuel, who declines the work. Élise pays $28,000 for the necessary repairs and demands immediate reimbursement. A separate $7,000 storage installation increases practical utility and value, is unnecessary for preservation and can be removed without damage.

End enjoyment and settle the account

Extinction and restitution

Article 1162 CCQ lists expiry, death or dissolution, union of the holders' qualities subject to third-party rights, forfeiture, renunciation, conversion into an annuity and ten years of non-use. Articles 1163–1166 CCQ add qualifications concerning loss, expropriation and particular duration arrangements. Identify the first operative event and its effect on the specific right. A planned future expiry does not postpone a different cause that has already occurred.

Restitution (restitution) under art. 1167 CCQ concerns the property in its condition at termination, with responsibility for losses due to fault or outside normal use. The final account should reconcile receivables, capital amounts, indemnities and reimbursement claims with the opening inventory. It should distinguish ordinary wear, pre-existing defects and damage attributable to the usufructuary. A list of expenses unsupported by their legal classification will not establish the balance due.

Forfeiture under art. 1168 CCQ is a judicial response to abusive enjoyment or endangerment of the bare owner's rights, with several possible outcomes. Renunciation under arts. 1169–1170 CCQ and conversion into an annuity under art. 1171 CCQ have their own conditions. Serious difficulty performing obligations may support conversion; simple preference for cash does not establish the statutory condition. The remedy must respond to the facts proved.

The narrower right of use

Article 1172 CCQ limits use and enjoyment to the needs of the user, persons living with the user and dependants. The actual household and needs therefore matter. Article 1173 CCQ makes use non-assignable and unseizable unless the constituting agreement or act provides otherwise. If the instrument is silent on assignment or seizure, a court may authorize it in the user's interest after finding that the owner suffers no injury. Those restrictions differ from the transfer rule for usufruct.

A user of part of property can use common facilities under art. 1174 CCQ. Article 1175 CCQ apportions production expenses, maintenance and charges according to full or partial use. Article 1176 CCQ imports usufruct rules with necessary adaptations, but conversion into an annuity applies only if use is assignable and seizable. Compare the act, the beneficiary's needs and the extent of actual use before importing a usufruct answer into a use problem.

Practice Checklist

• Identify the constituting act, beneficiaries, property, duration and publication.
• Distinguish usufruct, bare ownership and a needs-limited right of use.
• Complete the inventory and identify the security requirement, exemption and deadline.
• Classify each receipt as income, capital or an amount requiring an eventual account.
• Separate maintenance, major repairs and useful improvements; preserve notices and invoices.
• Check insurance of the property, security and each holder's separate insurance.
• Identify the operative extinction event and prepare a supported restitution account.