Dutch Civil Code

Book 3 Property law in general

Title 3.8 Usufruct

Article 3:201 Definition of 'usufruct'
A usufruct is a real property right that grants another person - the usufructuary - the right to make use of one or more assets which belong to someone else - the main proprietor - and to enjoy the fruits produced by these assets.

Article 3:202 Coming to existence of a usufruct
A usufruct comes to existence through an establishment or a prescription.

Article 3:203 Establishment of a usufruct
- 1. A usufruct may be established on behalf of one person or on behalf of two or more persons who are entitled to it either jointly or in succession. In the last situation all persons who will be entitled to the usufruct after the first usufructuary must exist at the moment on which the usufruct is established.
- 2. A usufruct cannot be established for a longer period than for the life of the usufructuary. Where a usufruct is established on behalf of two or more usufructuaries jointly, and the share in the usufruct of one of these usufructuaries ends, this share will be added to the share of the other usufructuary or usufructuaries, always towards each other in proportionality of their shares, and such a joint usufruct will only cease to exist when the right of the last remaining usufructuary has ended, unless the contrary has been stipulated at the establishment of the usufruct.
- 3. When the usufructuary is a legal person the usufruct will end at the dissolution of that legal person, and in any event, thirty years after the day on which the usufruct was established.

Article 3:204 [repealed on 01-01-2003]

Article 3:205 Inventory of the property subject to usufruct
- 1. Unless a (fiduciary) administration of property by an appointed legal administrator already has lead or will lead to the making of a sufficient inventory of the property that is encumbered with usufruct, the usufructuary must by notarial deed make an inventory of the assets subject to usufruct, which inventory must be made in the presence of the main proprietor or otherwise at least after the main proprietor has been asked properly to be present at this occasion. This inventory can be made by private deed if the main proprietor is present at the making of the inventory and the usufructuary and main proprietor have come to an agreement with regard to the question how the inventory list must be stored.
- 2. Both, the usufructuary and the main proprietor, have the right to add particular details to the inventory list if this is useful to describe the state or quantity of the involving assets at that time.
- 3. The main proprietor may withhold the delivery and the supply of the property subject to usufruct if the usufructuary does not simultaneously perform his obligation to make an inventory.
- 4. The usufructuary must annually send to the main proprietor a signed precise list of the property subject to usufruct that is no longer present and of the property that has been obtained for it in return as well as of the advantages produced by the encumbered property other than its fruits.
- 5. The usufructuary may be released from the obligations which are incumbent upon him pursuant to the previous paragraphs.
- 6. The costs involved with the making of an inventory and the annual list referred to in paragraph 4 are for account of the usufructuary, unless parties have agreed otherwise.

Article 3:206 Providing security on behalf of the main proprietor
- 1. The usufructuary must provide security (collateral) to the main proprietor as assurance for the compliance of his obligations, unless he is released from this duty or the interests of the main proprietor are protected already sufficiently through the institution of a (fiduciary) administration of property by an appointed legal administrator.
- 2. Where the usufructuary is released from his duty to provide security (collateral), the main proprietor may demand every year that his encumbered property is shown to him. As far as the usufruct is vested on negotiable documents or currency, including bank accounts, it is enough to produce a declaration of a registered credit institution (bank), unless special circumstances implicate otherwise.

Article 3:207 Right to use or to use up the property subject to usufruct
- 1. A usufructuary may use or use up the property that is encumbered with usufruct in accordance with what is agreed upon at the establishment of the usufruct or, if such an arrangement has not been made, with due observance of the nature of the property subject to usufruct and of local practice with respect to the use or using up of these kind of assets if they are encumbered with a usufruct.
- 2. Furthermore, the usufructuary is entitled to perform all kinds of operations which may be useful for a proper administration and management of the property subject to usufruct. All other operations may only be performed by the usufructuary and the main proprietor jointly.
- 3. The usufructuary is towards the main proprietor compelled to look after the encumbered property and to administer and manage it with the prudence of a good usufructuary.

Article 3:208 Change of the function (intended application) of the encumbered property; right to take away additives
- 1. The function (intended application and usage) of the encumbered property at the time of the establishment of the usufruct, cannot be changed by the usufructuary without permission of the main proprietor or an alternative authorisation of the Subdistrict Court.
- 2. Unless the contrary has been stipulated in the notarial deed of establishment, the usufructuary is allowed, both in the course of the usufruct and at the end of it, to take away adjustments and additives made by him to the encumbered property, provided that the property is restored to its original condition.

Article 3:209 Insurance obligation
- 1. The usufructuary has the obligation to take out an insurance policy on the property subject to usufruct on behalf of the main proprietor, which insurance policy has to cover dangers that are usually covered by an insurance policy for this kind of property. If the usufruct is vested on a building, then the usufructuary at least has to take out an insurance policy against loss by fire.
- 2. As far as the usufructuary does not comply with the obligations mentioned in the first paragraph, the main proprietor may himself take out an insurance policy on the encumbered property and charge the costs of it to the usufructuary.

Article 3:210 Debt-claims and contracts subject to usufruct
- 1. Unless the contrary has been stipulated at the establishment of the usufruct, the usufructuary is entitled, both in and out of court, to demand satisfaction of the debt-claims subject to usufruct and to accept and collect the payments that result from these debt-claims.
- 2. Unless the contrary has been stipulated at the establishment of the usufruct, the usufructuary is only entitled to rescind and to terminate the agreements subject to usufruct when this can be useful for a proper administration and management of the encumbered property.
- 3. The main proprietor is only entitled to exercise the rights mentioned in the previous paragraphs if he has obtained either the permission of the usufructuary or the authorisation of the Subdistrict Court to do so. No appeal to a higher court and no other legal provisions are open against an authorisation given by the Subdistrict Court.

Article 3:211 Assets only indicated by type
- 1. Where one or more assets subject to usufruct are only defined to their type in the inventory or annual list, they still belong to the main proprietor by virtue of his main property right.
- 2. The usufructuary must keep these assets factually separated from his other property.

Article 3:212 Right of the usufructuary to dispose of the assets subject to usufruct
- 1. As far as the encumbered assets have the function to be alienated, the usufructuary is entitled to dispose of them in accordance with their function.
- 2. At the establishment of the usufruct the usufructuary may have obtained the right to dispose of other assets subject to usufruct then those meant in the previous paragraph. Article 3:208, 3:210 paragraph 2 and 3:217 paragraph 2 and 3, second sentence, and paragraph 4 do not apply to these assets.
- 3. In other situations the usufructuary is only allowed to alienate or encumber the assets subject to usufruct with permission of the main proprietor or the authorisation of the Subdistrict Court. An authorisation may be given only when the interests of the usufructuary or the main proprietor are served by the alienation or encumbrance of an asset subject to usufruct and the interests of other persons are not harmed as a result.

Article 3:213 Replacement of assets subject to usufruct
- 1. Where an asset subject to usufruct has been disposed of rightfully and replaced by another asset, this other asset will belong as well to the main proprietor and it will be encumbered immediately with the existing usufruct. The same applies to what is collected on a debt-claim subject to usufruct and to debt-claims for an alternative compensation which debt-claims have taken the place of an asset subject to usufruct, including debt-claims for alternative compensations that have become chargeable because of a depreciation of such assets.
- 2. Subject to usufruct are also all advantages derived in the course of the usufruct from an encumbered asset other than its fruits.

Article 3:214 Investment of encumbered money and bank accounts
- 1. Unless the contrary has been stipulated at the establishment of the usufruct, sums of money, including bank accounts, belonging to the property subject to usufruct, must be invested in consultation with the main proprietor or must be spend in the interest of the other property subject to usufruct.
- 2. A dispute with regard to the question what must be done with sums of money as referred to in paragraph 1, shall be settled by the person who is appointed to this end at the establishment of the usufruct or, if such a person has not been appointed, by the Subdistrict Court. Against a judicial decision of the Subdistrict Court as meant in the present paragraph no appeal to a higher court and no other legal provisions are open.

Article 3:215 Right to dispose of and to consume the property subject to usufruct
- 1. Where the usufructuary, either at the establishment of the usufruct or afterwards, has been granted the right to dispose of and to consume (use up) the encumbered assets entirely or partially, the main proprietor may demand at the end of the usufruct that the encumbered assets and their replacements are supplied to him, as far as the usufructuary or his legal successors cannot prove that these assets are either consumed (used up) or destroyed by mischance.
- 2. At the occasion of granting the right to dispose of and to consume (use up) the encumbered assets, two or more persons may be appointed whose approval is required to be allowed to dispose of and to consume (use up) these assets. When the usufruct is subject to a (fiduciary) administration of property by an appointed legal administrator, then this legal administrator has to co-operate in the disposition and consumption (using up) of the encumbered assets.
- 3. If the usufructuary has the right to dispose of and to consume (use up) the assets subject to usufruct, he may also use them as small presents as far as such presents are given commonly.

Article 3:216 Perception of fruits
All fruits of the encumbered assets that in course of the usufruct have been separated or have become due and collectable, shall immediately belong to the usufructuary. Furthermore it is possible to determine at the establishment of the usufruct which benefits will be regarded as fruits of the encumbered assets.

Article 3:217 Right of the usufructuary to lease out assets subject to usufruct
- 1. The usufructuary is entitled to lease out*) the assets subject to usufruct, as far as the contrary has not been stipulated at the establishment of the usufruct.
- 2. If an asset subject to usufruct was not leased out to a third party at the moment on which the usufruct was established, then the usufructuary is not entitled to lease it out without permission of the main proprietor or without the authorisation of the Subdistrict Court, unless this right has been granted to him at the establishment of the usufruct.
- 3. The main proprietor must at the end of the usufruct observe (respect) all lease agreements related to his property that have been concluded rightfully by the usufructuary in the course of his usufruct. The main proprietor may, however, refuse to observe such lease agreements as far as he has not given his permission to an agreed duration of the lease that is longer than the lease period according to local usage (common practice) or, where a retail building as meant in Section 6 of Title 4 of Book 7 of the Civil Code has been leased out, that is longer than five years or, in case of a farm lease, that is longer than 12 years if it concerns farm buildings or longer than 6 years if it solely concerns farmland, or when the lease out is done under exceptional conditions that are onerous to him.
- 4. The main proprietor may no longer refuse to comply with the lease agreement when the lessee has set a reasonable time within which the main proprietor has to give his opinion on the observance of the lease and he fails to do so within that period.
- 5. If the previous paragraphs do not have the effect that the main proprietor is obliged to observe a lease agreement that is rightfully concluded by the usufructuary, then he nevertheless has to continue the lease with the lessee (tenant) as far as it concerns a lease of a house which, at the end of the usufruct, forms the main residence of the lessee (tenant) and Articles 7:271 up to and including 7:277 of the Civil Code apply to this lease, on the understanding that in such a situation Article 7:269 paragraph 2 of the Civil Code is applicable as well to the lease between the main proprietor and the lessee (tenant).

*) This concerns lease agreements as well as farm lease agreements

Article 3:218 Possibility for the usufructuary and main proprietor to exercise a right of action
The usufructuary and the main proprietor are both independently entitled to file lawsuits or to lodge applications in order to get a judicial decision which concerns both, the right of the usufructuary and that of the main proprietor, provided that he ensures that the other is called to the legal proceedings in time.

Article 3:219 Voting rights
Except in situations as regulated in Article 2:88 and 2:197 and Article 5:123 of the Civil Code, the main proprietor is still the only one to exercise the voting rights which are linked to an asset subject to usufruct, unless the contrary has been stipulated at the establishment of the usufruct. In case of a usufruct as meant in Article 4:19 and Article 4:21 of the Civil Code also the usufructuary has a voting right, unless the contrary has been stipulated at the establishment of the usufruct or the Subdistrict Court has ordered otherwise on the basis of Article 4:23 paragraph 4 of the Civil Code.

Article 3:220 Ordinary duties and repairs
- 1. Ordinary duties and repair services with regard to the assets subject to usufruct are for account of the usufructuary and have to be carried out by him. When it is necessary to perform extraordinary repair services, the usufructuary must notify the main proprietor of this necessity and give him the opportunity to perform these repair services. The main proprietor, however, is not compelled towards the usufructuary to perform any repair services to the property subject to usufruct.
- 2. Nevertheless, the main proprietor who has remained partially entitled to the fruits of the property subject to usufruct as a consequence of the fact that the rights of the usufructuary have been limited to this point, is compelled to contribute proportionally in the duties and costs which by virtue of the previous paragraph are for account of the usufructuary.

Article 3:221 Non-compliance by the usufructuary
- 1. If the usufructuary in a serious degree fails to comply with his obligations, the court may, upon the request of the main proprietor, grant the right of administration of the property subject to usufruct to the main proprietor or place the right of usufruct under a (fiduciary) administration of property of an appointed legal administrator.
- 2. Pending that lawsuit the court may place the right of usufruct under a (fiduciary) administration of property of an appointed legal administrator by virtue of an immediately enforceable judicial decision.
- 3. The court may issue with regard to the right of administration of the main proprietor or the (fiduciary) administration by an appointed legal administrator such additional instructions as it finds suitable. Furthermore Articles 4:154, 4:157 up to and including 4:166, 4:168, 4:170, 4:172, 4:173, 4:174 and 4:177 paragraph 1 of the Civil Code are applicable, on the understanding that the Subdistrict Court may change the reward referred to in Article 4:159 of the Civil Code also on the basis of particular circumstances and it may order at all times to give security as meant in Article 4:160 of the Civil Code. The (fiduciary) administration of property by an appointed legal administrator may be cancelled by a mutual decision of the usufructuary and the main proprietor or, upon the request of one of them, by the court.

Article 3:222 Group of connecting assets
- 1. When a heritage, business or a similar group of connected assets is encumbered in its entirety with one and the same usufruct, the main proprietor may demand that the debts, belonging to this group of connected assets, are satisfied by the usufructuary out of the property subject to usufruct or, as far as the main proprietor has satisfied these debts himself from his own recourses, that the usufructuary supplies to him out of the property subject to usufruct one or more assets with an equivalent value as the payment made by the main proprietor, raised with an interest running from the day that the main proprietor has satisfied these debts. Where a debt, belonging to the group of connecting assets, has been satisfied by the usufructuary from his own recourses, not belonging to the property subject to usufruct, then the main proprietor must reimburse this payment to the usufructuary, but only at the end of the usufruct.
- 2. The provisions of the previous paragraph apply accordingly to a usufruct that is established on assets which are not as such connected with each other, but which produce exceptional property charges.

Article 3:223 Right to convey (transfer or encumber) the right of usufruct itself
The usufructuary may transfer his usufruct or encumber it with a limited property right; the duration of the usufruct is not affected as a result of this. Where the usufruct is transferred to another party, the original usufructuary and the new usufructuary are towards the main proprietor joint and several liable for all duties and obligations that result from the usufruct. If the original usufructuary had obtained more rights for alienating, using up or consuming the assets subject to usufruct than he would have according to rules of permissive law, then these extra rights are not obtained by the legal successors who have acquired the usufruct from him.

Article 3:224 Waiver of the right of usufruct by the usufructuary
If a usufructuary wants to waiver his right of usufruct because of the duties and obligations that are linked to it, the main proprietor must co-operate in this; the costs that have to be made to end the usufruct itself are in that event for account of the usufructuary.

Article 3:225 Return of the property subject to usufruct to the main proprietor
After the usufruct has ended, the usufructuary or his legal successors are compelled to place the property subject to usufruct again at the disposal of the main proprietor.

Article 3:226 Right of common and right of habituation
- 1. The statutory provisions for a right of usufruct apply as well to a right of common and a right of habituation, with the exception of the following provisions.
- 2. If only a right of common has been granted, then its proprietor is only entitled to use and to enjoy the fruits of the property encumbered with this right as far as he needs these fruits for himself or his family.
- 3. If only the right of habituation has been granted, then its proprietor is only entitled to live, together with his family, in the house encumbered with this right.
- 4. The proprietor of one of the specific rights of usufruct mentioned in the preceding paragraphs cannot alienate his right or encumber it with a limited property right, nor can he let someone else use the property or inhabit the house that is encumbered with his right.