Usufruct Rights in Real Estate Under Syrian Law
The Owner Retains the Bare Title… While the Usufructuary Holds the Benefit
Usufruct is one of the principal real rights derived from ownership. Article /936/ of the Syrian Civil Code defines it as the right to use and exploit property belonging to another. Accordingly, the powers of ownership are divided between two persons: the owner retains the right to dispose of the property itself, while the usufructuary has the right to use the property and exploit its benefits during the usufruct period.
What May the Usufructuary Do?
If the subject of the usufruct is a residential property, the usufructuary may reside in it and use it within the limits for which it was intended. The usufructuary may also exploit the property and obtain its fruits and benefits, including leasing it in accordance with the applicable legal provisions. The law regulates these rights in particular under Article /943/ and the articles that follow in the Civil Code.
However, the usufructuary does not become the owner of the property and may not sell the property itself or the bare title, as the usufructuary does not own it. The right is limited to usufruct.
Can the Owner Sell the Property?
Yes, but this point requires precision.
The existence of a usufruct does not necessarily prevent the bare-title owner from selling the property. In principle, the owner may dispose of the ownership, but the purchaser receives the property encumbered by the existing usufruct where that right is effective and duly registered.
This highlights the importance of registering the usufruct in the land registry. Real rights in real estate do not acquire opposability against third parties merely through a private agreement; registration has a fundamental effect in establishing the right and making it effective. The Syrian Legal Encyclopedia indicates that a real-estate usufruct arises only through registration in the land registry in accordance with the required procedures.
Does the Usufruct Pass to the Heirs?
The general rule is: no.
Article /936/ provides that usufruct necessarily lapses upon the death of the usufructuary. It is therefore a temporary right linked to its holder personally and does not pass to the heirs after death. Article /954/ also confirms that its grounds for termination include the expiry of its term, the death of the usufructuary, the total destruction of the property, waiver of the right, or the merger of the capacities of owner and usufructuary in one person.
Notably, unless otherwise agreed, the law permits the usufructuary to transfer the right to a third party, with or without consideration. This does not extend the duration of the right: usufruct remains linked to the original usufructuary and lapses upon that person’s death, not upon the death of the person to whom the right was transferred. This is provided by Article /947/ of the Civil Code.
Registration Is Not a Mere Formality:
In practice, if a person wishes to grant another person a usufruct over real estate while retaining ownership, it should not be sufficient to rely on a private agreement between them. The relationship should be legally documented and the right registered on the property record.
Registration is what discloses to third parties that ownership of the property is not free from encumbrances and prevents the usufructuary’s right from being disregarded when ownership of the bare title passes to another person.
Baghdadi Law’s Perspective:
Usufruct creates a precise balance between ownership and benefit:
The owner retains ownership of the bare title and the right to dispose of it, while the usufructuary enjoys the right to use and exploit the property during the usufruct period.
However, the strength of this right, particularly against third parties, begins with its duly completed registration in the land registry, and it generally ends upon the death of the usufructuary without passing to the heirs.
Ownership of the property may pass to another person, but a registered usufruct remains in force until it ends for the reason specified by law.
Reference: The Syrian Civil Code issued by Legislative Decree No. /84/ of 1949, particularly Articles /936–954/.