Ruling on a point of law as to whether or not
perpetual usufruct can be extended after the expiry of
the term for which it was established if the perpetual
usufructuary or his/her heirs request such extension
in the period prescribed under Article 236 § 2 of the
Civil Code (“CC”), i.e. within the last five years of
the perpetual usufruct term provided for under the
agreement, the Supreme Court held that an
agreement for extension of perpetual usufruct can be
also concluded after the expiry of the perpetual
usufruct term as long as the perpetual usufruct
extension request is submitted within the period
referred to above.
While the Supreme Court has not addressed this
issue until now, two opposite opinions have
prevailed among legal commentators. According to
the first view, in order to be valid, the very extension
of perpetual usufruct must be effected prior to the
expiry of the term for which it was established even
if the perpetual usufructuary requested extension
before the expiry of the right. The proponents of the
other—opposite—view argue that if the perpetual
usufructuary is entitled to request extension of
perpetual usufruct within a period of five years prior
to its expiry (Article 236 § 2 of CC) there is noting
to prevent him/her from making a valid request for
extension also on the last day of such term; under
such circumstances, the right of perpetual usufruct
does not expire.
In its resolution, the Supreme Court subscribed to the
latter view outlined above. The Supreme Court
stressed that the right to extend a perpetual usufruct
agreement is conditional upon the extension request
being communicated by the perpetual usufructuary
prior to the expiry of the time for which such right
was originally established. It is irrelevant for the
extension of the perpetual usufruct right when the
parties actually conclude the pertinent agreement (in
a scenario where they are of the same mind on
extension of the perpetual usufruct) or when a court
ruling obligating the land owner to submit a
declaration of intent regarding extension of such
property right (in case of a dispute) becomes non-
appealable. Obviously, if the perpetual usufructuary
fails to request extension of the relevant perpetual
usufruct right, the right will expire with the lapse of
the term for which such right was established.
The Supreme Court’s ruling in question is of great
practical significance as extensions of perpetual
usufruct right are often requested by legal successors
to perpetual usufructuaries. The very conclusion of
an agreement for extension of perpetual usufruct
frequently requires a certain period of time to submit
the relevant request (e.g. since the decision
confirming acquisition of inheritance from the
original perpetual usufructuary needs to be
obtained). The Supreme Court pointed out that
adopting a different view would also enable the
owner of the property to evade conclusion of the
agreement for extension of perpetual usufruct by
delaying actions that are necessary to conclude it.
The resolution of the Supreme Court needs to be
seen as a positive development. The ruling helps
attain the objective of the legislation, which is to
make it easier for the perpetual usufructuary to
extend the duration of the perpetual usufruct right.
The resolution also reflects the view of the majority
of legal commentators and thus gives an assurance as
to coherent interpretation of legal norms.