When does a co-owner acquire exclusive ownership of a common property with usufruct?
The term “usufruct” is familiar to most people and comes to mind the 20-year continuous possession of the property with acts that indicate our willingness to make it ours.
Legally, this usufruct is extraordinary usufruct and means acquisition of ownership “originally” that is, without the person acquiring the property from the previous owner. The 20-year period begins from the first act of ownership of another’s property.
However, if the property is common, that is, if it belongs to more than one person, and one owner uses it exclusively, things change.
First of all, from the provisions on partnership, that is, the provisions concerning the rights and obligations of co-owners, it follows that the undivided co-owner of a property is considered to own the common thing in the name of the other co-owners and therefore cannot assert usufruct against them.
One may acquire ownership by usufruct, at the expense of the co-owners, but he must notify them of his decision to henceforth use (allocate) a percentage greater than his own or the entire common thing exclusively for his own account.
In this case, the 20-year limitation period begins to run from the above notification of his intentions.
Such notification to the co-owners may be made either explicitly or implicitly, by acts that reveal the above decision of the co-owner possessing the thing, while the knowledge of the other co-owners about the duplication of the title may come either from a declaration by the person possessing the title of the common, or from anyone else (their representative), and the co-owner’s knowledge of the duplication of the common owner is sufficient, regardless of who it comes from.
Such notification is not required if the co-owners previously proceeded to an informal distribution of the common property, since from then on each of them, with the knowledge of the others, exclusively allocates for himself the part of the property that came to him through the informal distribution.
Most joint properties are acquired through inheritance. For example, a father dies and leaves a house to his 3 children. This house will belong to all 3 heirs indivisible and they are co-owners.
For real estate acquired through inheritance, it follows that upon the death of the deceased, the ownership of the real estate that he had is transferred to the heir without the acceptance of the inheritance, while the undivided co-owner of real estate, if he has the entire common property in his possession, is considered to own the common property in the name of the other co-owners and, therefore, cannot object to extraordinary usufruct against them, before making them aware that the entire common property is owned exclusively in his name, as owner, for his own exclusive account.
The above provisions also apply to inherited real estate and, consequently, the co-heir who owns the entire joint estate is considered to own it in the name of the other co-heirs and cannot assert a right of usufruct against them, before informing them that the entire real estate is being transferred exclusively for his own account.
