Reservation and Establishment of Usufruct: Guide and Differences

Context Note: This content describes Brazilian notarial and real estate registry law.

Em resumo

• Reservation and establishment of usufruct are two distinct legal methods of dividing rights over real estate between effective use and bare ownership (nua-propriedade).
• Reservation of usufruct (deductio) occurs when you donate bare ownership and retain the use of the property for yourself.
• Establishment of usufruct (constitutio) occurs when you grant the right of enjoyment to another person while remaining the owner.
• Both acts require a public deed (escritura pública) at a notary office (tabelionato de notas) and subsequent registration at the real estate registry office (registro de imóveis) to guarantee legal certainty.

Qual a diferença entre reserva e instituição de usufruto?

Understanding the concepts of reservation and establishment of usufruct prevents serious errors in estate planning. The fundamental difference lies in the origin of the in rem right (direito real) and the initial ownership of the property.

In reservation of usufruct, technically termed deductio, the current owner of the property decides to transfer bare ownership (nua-propriedade) to another person, but retains the in rem right to inhabit, use, and enjoy the fruits of the property. This is common in family arrangements. Parents donate property to their children while reserving a life estate usufruct for themselves. Thus, they ensure housing for the rest of their lives.

In the establishment of usufruct, termed constitutio, the owner retains the bare ownership of the property and grants the right of use and enjoyment to a third party. For example, if you own a commercial office, you can establish usufruct of that property in favor of a relative or entity. You remain the owner in the real estate registry, but rent payments and possession belong to the designated usufructuary.

The Código Civil (Brazilian Civil Code - Law No. 10,406/2002) governs usufruct as an in rem right over another's property [VERIFY: Civil Code, art. 1º,225, IV]. The appropriate choice between reservation and establishment of usufruct affects taxes and the drafting of the public deed.

| Feature | Reservation of Usufruct (Deductio) | Establishment of Usufruct (Constitutio) |

| :--- | :--- | :--- |

| Origin of the act | The owner transfers or donates bare ownership and reserves usufruct for themselves. | The owner retains bare ownership and grants usufruct to another party. |

| Who holds usufruct | The former sole owner of the property. | A third party (designated beneficiary). |

| Main act in registration | Transfer/Donation with concurrent detachment of usufruct on the property register sheet (matrícula). | Direct creation of an in rem right of usufruct over the property. |

| Typical taxation | ITCMD on donation of bare ownership (and a portion of usufruct, depending on state law). | ITCMD (if established gratuitously) or ITBI (if established for consideration). |

| Common application | Family succession planning between parents and children. | Assignment of income or temporary housing to third parties without losing property ownership. |

To explore your structuring options further, check our guide on deeds of donation and purchase and sale.

Como funciona a reserva e instituição de usufruto no registro de imóveis?

The registration procedure for reservation and establishment of usufruct takes place before the real estate registry official (oficial de registro de imóveis) of the property's jurisdiction. Simply signing a public deed at the notary office (tabelionato de notas) does not transfer the in rem right against third parties. The legal creation of usufruct depends on real estate registration (Código Civil, art. 1º,245) Lei nº 10.406/2002 — Código Civil, art. 1º.245.

Upon receiving the deed, the registrar conducts real estate title qualification (qualificação registral imobiliária). They verify compliance with federal law and guidelines from the Conselho Nacional de Justiça (National Council of Justice - CNJ). If everything complies with the Lei dos Registros Públicos (Public Records Law - Law No. 6,015/1973), the act is recorded on the property's register sheet (matrícula).

In registration practice, the sequence of acts differs between reservation and establishment of usufruct:

• Reservation procedure: The real estate registry official registers the transfer of bare ownership to the new acquirer and enters the corresponding registration of reserved usufruct in favor of the former owner.
• Establishment procedure: The real estate registry official opens a specific registration entry for the creation of the in rem right of usufruct in favor of the beneficiary, keeping the original owner in the property's matrícula history.

To understand how title processing and priority work, see the article on real estate title qualification and entry priority deadlines.

FAQ

What is the difference between reservation and establishment of usufruct?

Reservation of usufruct occurs when the owner donates or sells the bare ownership of the property while retaining the right of use and enjoyment for themselves. Establishment of usufruct occurs when the owner grants the in rem right of use and enjoyment to a third party while retaining bare ownership.

How do reservation and establishment of usufruct work in the real estate registry?

In the real estate registry, reservation of usufruct is usually annotated or registered alongside the transfer of the property on the same register sheet. Establishment of usufruct is registered as a distinct in rem right over another's property, requiring its own title qualification.

What documents are required for registering the reservation and establishment of usufruct?

You must present the public deed executed at a notary office, proof of payment for applicable taxes (ITCMD or ITBI), tax assessment records for the property, and updated certificates from the real estate registry.

What is the tax difference (ITCMD and ITBI) for reservation and establishment of usufruct?

In a donation with reservation of usufruct, state ITCMD applies to the gratuitous transfer of bare ownership and, depending on state law, to the reservation itself. In an establishment of usufruct for consideration, municipal ITBI applies to the value corresponding to the granted in rem right.

Base legal

• provimento_cnj 149 2023 — Provimento CNJ nº 149/2023
• provimento_cnj 149 2023 — Provimento CNJ nº 149/2023
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• lei_federal 8.935 1994 — Lei nº 8.935/1994
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• codigo 10.406 2002 — Lei nº 10.406/2002 — Código Civil
• lei_federal 8.935 1994 — Lei nº 8.935/1994

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