What happens if a usufructuary dies and she rented out the house during her lifetime?

What rights does the owner have to sell the house? What rights does the tenant enjoy?

Here’s an example of a simple usufruct:

I bequeath to my son, Joe Bloggs, my house at 67 Henry Road, Norwood, Johannesburg, and all the contents therein, subject to a life usufruct therein in favour of my wife, Jane Bloggs.

So the will enables Jane (the usufructuary) to use the Norwood property (the usufructuary property) belonging to her son, Joe (the bare dominium owner) and to enjoy the fruits thereof, for her lifetime.

The usufruct ends on Jane’s death, when the usufructuary property vests in Joe.

These are some of Jane’s and Joe’s rights and obligations:

  • Jane’s estate is obliged to restore the property to Joe on her death in the same condition as that in which she received it, fair wear and tear excepted;
  • Jane was responsible for the maintenance of the property, but not to improve it;
  • Jane could not mortgage the property subject to the usufruct;
  • Unless both Jane and Joe agree, the property subject to a usufruct cannot be sold by the usufructuary or by the baredominium owner without leave of the court;
  • Unless the will provides otherwise, Jane had to pay rates and taxes;
  • If the property is subject to a mortgage bond, Jane was not responsible for payment of the interest, unless the will has so specified, or there were insufficient funds in the estate to do so;
  • Jane had the right to let the property which is subject to a usufruct, and collect the rental (the fruits and profits which may be derived from the property subject to the usufruct) but the lease can only be valid for the period of the usufruct.

Accordingly on Jane’s death, the lease comes to an end and Joe can sell the property.

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