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.