What is the Right of Usufruct?
The right of usufruct is a limited real right that grants the holder the authority to possess, use, and benefit from someone else’s property, as well as to dispose of it. As a rule, the right of usufruct cannot be transferred to another person nor passed on through inheritance; however, the usufruct holder may allow someone else to use this right. This right is regulated under Article 794 of the Turkish Civil Code and is stated as follows:
The right of usufruct can be established over movable property, immovable property, rights, or an estate. Unless otherwise stipulated, this right grants the holder full entitlement to benefit from the subject matter.
The usufruct right not only grants the holder the rights and powers mentioned but also derives these powers from the owner, i.e., the holder of the property rights. Accordingly, the owner of the property with a usufruct right loses the rights to use and benefit from the property, and therefore, the property right exists only as bare ownership. However, this does not prevent the owner from transferring the property right to a third party, and even if the ownership transfer takes place, the usufruct right remains with the usufruct holder.
Additionally, it should be noted that the usufruct right is the right that grants the person the most extensive protection and usage rights after property rights. The holders of this right obtain full and unlimited benefit from the subject matter/property that constitutes the subject of the right.
Establishment of the Usufruct Right
The establishment of the usufruct right is divided into three categories: establishment through a contract, establishment through a unilateral legal action, and establishment by law. Establishment through a contract occurs when a contract containing the usufruct right over real property is registered in the land registry. Establishment through a unilateral legal action occurs after unilateral legal acts, such as a will. By law, the usufruct right is established as a result of a special regulation in the law.
Additionally, the procedure for establishing the usufruct right is outlined in Article 795 of the Turkish Civil Code (TMK) as follows:
“Usufruct is established by the transfer of possession of movable goods, the transfer of a receivable in case of debts, or by registration in the land registry for immovables. In the acquisition and registration of usufruct rights on movable and immovable property, unless otherwise stated, the provisions regarding ownership shall apply. Even if the legal usufruct right over real property has not been registered in the land registry, it may be asserted against those who are aware of the situation. If it is registered, it may be asserted against everyone.”
The Rights and Obligations of the Usufruct Holder
As mentioned, the usufruct holder has the rights to possess, manage, use, enjoy, dispose of the property, and request the keeping of records (Turkish Civil Code, Article 803/1).
1. Possession
The possession of the usufructuary refers to the authority to have physical control over the property. Moreover, if the immovable subject to usufruct is occupied, the usufructuary has the right to file a lawsuit for the prevention of trespassing or a lawsuit for occupation compensation (ecrimisil).
2. Management, Use, and Benefit from the Property
The authority to manage, use, and benefit from the property can be exercised by the usufruct holder without damaging the intrinsic value of the property. The usufruct holder may, if desired, delegate the authority to manage the property to another person and, based on the right to benefit, can fully enjoy the fruits of the property. Therefore, benefits such as natural products obtained during the usufruct period (Turkish Civil Code Article 804) are considered to belong to the usufruct holder, not the owner.
3. Disposal
The usufruct holder, although they do not have any ownership rights, such as the right to transfer or establish real rights, does have an exceptional right of disposal. An example of this would be consumable items, which, unless otherwise agreed, belong to the usufruct holder, or other movable property given to the holder, which is appraised, unless otherwise agreed.
4. The right to request the maintenance of a record.
The usufruct holder, just like the owner, may request the maintenance of a record for the property subject to usufruct by a notary in order to share the expenses with others. This matter is regulated by the legislator in Article 811 of the Turkish Civil Code (TMK).
The Rights and Obligations of the Owner of the Property
The full right of disposal over the property subject to the usufruct right belongs to the person who has the ownership right, i.e., the owner. Accordingly, the owner has the right to transfer the property, sell it, or establish a lien on it. Additionally, if the usufruct holder uses the property in a manner inconsistent with the law or its nature, the owner has the right to object.
Furthermore, the owner is responsible for protecting the intrinsic value of the property subject to usufruct. Therefore, if the condition of the property requires significant actions or measures to be taken, the owner is obligated to allow these actions to be carried out. Moreover, under Articles 812/2 and 812/3 of the Turkish Civil Code, if the usufruct holder fails to carry out necessary actions, the owner has the right to perform these actions on their behalf.
The Termination of Usufruct Rights
The termination of usufruct rights is addressed in Article 796 of the Turkish Civil Code (TMK) and can occur in seven different situations. These situations are: the destruction of the property subject to usufruct, the expiration of the usufruct period, forced sale through execution, expropriation, the death of the usufruct holder, the death of a legal entity, and termination by court order. In its ruling, the 7th Civil Chamber of the Court of Cassation, dated 28.10.2021, with case number 2021/2711 and decision number 2021/2433, stated:
“For the establishment of a usufruct right on real property, an official deed and registration in the land registry are required, and after its establishment, the cancellation of the usufruct record must be based on legal grounds. These grounds include: cancellation of registration according to Article 796/1 of the Turkish Civil Code, expropriation according to Article 798, destruction of the property according to Article 796/1, forced execution, termination of the legal reason for usufruct according to Article 796, abandonment by the right holder according to Article 796/2, expiration of the specified period (if any), and finally, the death of the usufruct holder. If the usufruct holder passes away, the usufruct right automatically terminates without the need for further action. Due to its nature as a personal right, the usufruct right cannot be inherited by the heirs of the deceased.”
Frequently Asked Questions
1. Can the Right of Usufruct Be Acquired by Prescription?
It is possible to acquire the right of usufruct through both ordinary and extraordinary prescription. In this regard, if the property subject to the usufruct right is immovable, the provisions regarding the acquisition of immovable property through prescription are applied.
2. What is the maximum duration of the usufruct right?
Article 797 of the Turkish Civil Code (TMK) defines the duration of the usufruct right as follows:
“Usufruct rights for natural persons end upon the death of the right holder; for legal entities, it ends upon the expiration of the agreed period, or if no period is agreed upon, with the termination of the legal entity’s existence. The usufruct right of legal entities may last for a maximum of one hundred years.”
3. Can Heirs Abolish the Usufruct Right?
As mentioned under the heading “Termination of Usufruct Right,” the usufruct right terminates upon the death of the right holder and, therefore, does not transfer through inheritance. However, as stated in Article 797 of the Turkish Civil Code (TMK), if the usufruct holder is a legal entity, this right lasts for a maximum of 100 years.
4. Can a House with Usufruct Right Be Sold?
Although usufruct is a real right, as mentioned, it is less comprehensive than the ownership right. As a result, the owner can sell the movable or immovable property on which usufruct exists. After the sale, the buyer’s rights to use and benefit from the property are subject to a “limiting function.” Following the transfer of ownership, the usufruct holder does not lose their right and continues to maintain the usufruct right.
Some Supreme Court Decisions Regarding Usufruct Rights
- “If there is a usufruct right on the property for which the dissolution of partnership is requested, the usufruct holder must be included in the case. If the usufruct right was established on the property before the entry into force of the Turkish Civil Code No. 4721 on 01.01.2002, the property must be sold with the usufruct right attached, in accordance with the decision of the Turkish Supreme Court’s Unification of Precedents, dated 14.03.1960 and numbered 1/3. If the usufruct holder alone requests the conversion of this right into money and the sale of the property without the usufruct, a decision should be made to sell the property without the usufruct, without requiring the consent of the other co-owners.” (Supreme Court, 7th Civil Chamber, Decision dated 20.10.2021, Case No. 2021/5940, Decision No. 2021/2117)
- “… As for the concrete case; on 03.05.2011, a contract was concluded between the plaintiff … General Directorate and the defendant … regarding the usufruct right granted to the defendant for 49 years on the property located at Parcel 33, Block 3, which is owned by the plaintiff, and the Seyrantepe Sports Complex (referred to as Türk Telekom Arena Stadium), which was not addressed in the preliminary agreement dated 20.04.2007. Based on the usufruct right, the defendant … signed two contracts for the establishment of a base station on the Seyrantepe Sports Complex, the subject of the lawsuit, on 28.07.2011, one for a duration of 5 years and 2 days with Turkcell İletişim Hizmetleri A.Ş., with a value of 1,600,080.00 TL, and on 18.08.2011, another for 5 years with Vodafone Telekom A.Ş., with a value of 1,414,080.00 TL. Unless otherwise agreed, the usufruct right is an easement right that grants the holder full use of the subject property; however, as stated in Article 804 of the Turkish Civil Code above, the “complementary parts” that are not considered the natural product or yield of the property belong to the owner. Therefore, the usufruct right created by the contract between the parties does not grant the defendant the right to establish and lease base stations on the property. As a result, the rental income obtained must be paid to the plaintiff. For this reason, the dismissal of the case is contrary to procedure and law, and the judgment must be overturned.” (Supreme Court, 7th Civil Chamber, Decision dated 27.09.2021, Case No. 2021/24, Decision No. 2021/1153)
- “Regardless of the matrimonial regime, the surviving spouse has the right to claim ownership of the family home and household items among the deceased’s estate in proportion to their legal share of inheritance. If there are valid reasons, the surviving spouse may request the right to occupy or usufruct the property instead of ownership. However, this allocation and right of acquisition are not without cost. If the value of the family home does not cover the surviving spouse’s share of the inheritance, they may request ownership of the family home by paying the difference in value beyond their inheritance share. If they do not have the financial capacity to pay the remaining balance, they may request the usufruct or the right to occupy the family home. In the present case, since the surviving spouse … passed away on 31.08.2014 before the date of the decision, it is clear that no decision regarding the allocation of the family home to the surviving spouse … based on their inheritance share could be made with the decision dated 20.11.2014. However, in case file 2012/326 E, the court accepted the request for the allocation of the family home to the surviving spouse in accordance with their inheritance share, and this decision became final on 04.06.2015 after the parties did not file an appeal. Since it is legally impossible to issue an additional decision on 13.12.2019 that would completely annul the legal consequences of the final court decision, the court’s additional decision dated 13.12.2019 must be overturned.” (Supreme Court, 14th Civil Chamber, Decision dated 19.04.2021, Case No. 2020/3509, Decision No. 2021/2907)
- “As explained above, if the usufruct right expires while the lease agreement is still in effect, the lease agreement between the plaintiff company and the defendant … Urban Planning and Construction San. Tek. Hiz. Ltd. Şti. will not terminate. As a result of the analogy of Article 254 of the Turkish Code of Obligations (BK), even if the usufruct right expires, the property owner, … Municipality, will remain bound by the lease agreement and will be in the position described in the second paragraph of Article 254 of the BK, as if the new owner of the leased property had taken over the lease. Therefore, even though the usufruct right has expired, since the lease agreement continues, it must be accepted that the Municipality is now a party to the lease agreement, in accordance with the relevant article. During the discussions in the General Assembly of the Court of Civil Law, the opinion that the decision of resistance should be overturned, as it was contrary to procedure and law while it should have complied with the Special Chamber decision, was not adopted by the majority of the Assembly for the reasons explained above. Therefore, based on the principles and extended reasoning explained above, the resistance decision is in accordance with procedure and law, and it must be upheld.” (Supreme Court, Civil General Assembly, Decision dated 06.04.2021, Case No. 2017/2641, Decision No. 2021/411)
- “Given this situation, since the usufruct right was previously registered in the name of the plaintiff, and during the phase of establishing a condominium title, the usufruct right was not transferred or registered in the record of the disputed independent section, and considering that during the process of the immovable property being transferred to the defendant through forced sale and subsequently through sale, the usufruct right is not listed in the registry, the defendant is in the position of a bona fide third party who purchased and used the immovable property; therefore, since this cannot be considered as unlawful occupation, the plaintiff’s claim for rent (ecrimisil) should be rejected. For this reason, it is necessary to comply with the Special Chamber’s decision to overturn, which was also adopted by the Civil General Assembly, instead of resisting the previous decision based on an erroneous rationale, which is contrary to procedure and law, and the decision should be overturned.” (Supreme Court, Civil General Assembly, Decision dated 22.12.2010, Case No. 2010/3-654, Decision No. 2010/692)
Antalya Real Estate Law Attorney – Antalya Real Estate Law
The support of a lawyer is of great importance during the establishment, transfer, or termination of a usufruct right. Here are the contributions a lawyer can provide:
- Drafting of contracts: The scope and duration of the right are clearly defined.
- Follow-up of land registry procedures: Ensures no errors are made during official transactions.
- Dispute resolution: Legal defense is provided in case of violation of the right.
- Inheritance disputes: Guidance is offered regarding aspects of the usufruct right related to inheritance.
The right of usufruct has a complex structure that affects both ownership and usage rights. For this reason, a real estate lawyer not only helps prevent any loss of your rights but also ensures that the process is secured within the legal framework. Whether you are planning a property transfer or claiming a right related to inheritance, consulting a lawyer specialized in usufruct rights can protect you from serious issues that may arise in the future.
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