What is the Right of Usufruct?
The right of usufruct (intifa hakkı) is an easement that grants a specific person the right to full enjoyment over a property or an asset belonging to another. With the establishment of the right of usufruct, the owner of the immovable property retains the core value (öz değer) of the property or the right, whereas the benefits to be derived from them are allocated to a specific person.
How is the Right of Usufruct Established?
The right of usufruct appears in three forms: established by contract, established by court decision, and legal usufruct.
Usufruct Established by Contract The right of usufruct over immovable properties is established by the execution of an official deed and its registration in the land registry. The legal provisions regarding the transfer of immovable property ownership are also applicable to the rights of usufruct established over immovables. Therefore, just as an owner of an immovable can sell their property, they can also establish a right of usufruct in favor of a third party. This third party can be a natural person or a legal entity.
In practice, generally, a person who owns the entirety of an immovable property sells the naked ownership (kuru mülkiyet) while reserving the right of usufruct for themselves; this necessitates the registration of the usufruct right in the land registry. For example, a father may donate or sell the naked ownership to his children while retaining the right of usufruct for himself. Naturally, the reverse is also possible. In other words, the owner may retain the naked ownership and establish a right of usufruct in favor of someone else.
Legal Usufruct Legal usufruct rights are those prescribed by law. A legal usufruct right over an immovable property can be asserted against those who are aware of the situation, even if it has not been registered in the land registry. Conversely, if it is registered, it can be asserted against everyone. Usufruct rights arising from the law are listed as follows:
The usufruct right of the surviving spouse in inheritance (With the amendment made to the Civil Code by Law No. 3678 dated November 23, 1990, the surviving spouse’s usufruct right arising from inheritance was abolished. Therefore, it is only possible for the surviving spouse to choose the usufruct right in deaths occurring before November 23, 1990, as the legislation in force at the date of death shall apply.)
The usufruct right of parents over the property of a minor under their custody.
The usufruct right of the husband over the property of the wife.
Usufruct Established by Court Decision If the subject of the usufruct right is an immovable, the contract regarding the establishment of the usufruct right must be made in official form. If the owner refrains from the request for registration, the creditor may ensure the judicial establishment of the usufruct right. With the court decision, the usufruct right is born without registration. Furthermore, it should be noted importantly that a finalized court decision is required for usufruct rights to be established based on a court order.
How Does the Right of Usufruct Terminate?
The termination of the right of usufruct varies according to the subject of the right, just like its establishment. There are multiple reasons for the termination of a usufruct right allocated over an immovable. These can be listed as:
Expiry of the term (if established for a limited period) or waiver of the usufruct right.
Death or the end of personality (termination of legal personality, disappearance/absence [gaiplik], etc.).
Cancellation (terkin).
Total destruction of the immovable.
Expropriation of the immovable.
Sale of the immovable through compulsory execution.
Court decision.
The termination of usufruct rights over movable property or receivables occurs in two ways. The first is through the destruction of the movable or the termination of the right of receivable. The second occurs through the passage of time if the usufruct right is bound by a term, or if not bound by a term, through the death of the right holder or the end of their personality.
Upon the termination of the right of usufruct, the right holder must return the subject of the usufruct right to the owner. As a rule, the usufruct holder must return the property in the condition they received it. While the usufruct holder cannot be held liable for wear and tear caused by normal use, they are liable for damages and value decreases occurring outside of these unless they prove that such events did not occur due to their own fault. At the same time, the usufruct holder is obliged to compensate for products obtained by exceeding the limits of the usufruct right.
In return for these liabilities, the usufruct holder may claim compensation for the expenses and additions made to the property—even if they were not obliged to do so—pursuant to the provisions of negotiorum gestio (vekaletsiz iş görme). The compensation claims of both the owner and the usufruct holder are subject to a statute of limitations of one year starting from the return of the property.