A frequently underestimated risk in commercial leasing arises where the lessor is only a usufructuary of the property — and not the full owner. The 2021 reform of property law fundamentally changed the legal position of the lessor, the bare owner and the commercial tenant alike.
The former rule: article 595 of the old Civil Code
Under the former article 595 of the Civil Code, a usufructuary could independently conclude a commercial lease. When the usufruct came to an end — for instance upon the death of the usufructuary or upon expiry of its term — the tenant remained protected for the remainder of the current nine-year period.
Concretely: if the usufructuary had concluded a nine-year commercial lease in 2018 and passed away in 2022, the bare owner had to respect the lease until 2027 — the end of the first nine-year period. This afforded the commercial tenant substantial security.
The new rule: article 3.145 of the Civil Code
Since 1 September 2021, the new Book 3 of the Civil Code (Property) has been in force. Article 3.145 substantially rewrites the powers of the usufructuary:
« The usufructuary may grant, extend or renew rights of use over the encumbered property to third parties. If the usufruct ends because the usufructuary ceases to exist, this ongoing right of use for valuable consideration continues for its remaining duration, and for no more than three years, after which it terminates by operation of law. »
The crucial change lies in the words « and for no more than three years ». A commercial lease which previously continued until the end of the current nine-year period now terminates no later than three years after the end of the usufruct.
Who is affected by this change?
The impact is significant for a number of specific situations.
Families with estate planning. Many families have structured their real estate assets through a split acquisition: the parents acquire the usufruct, the children the bare ownership. Upon the parents' death, the usufruct expires and the bare owner becomes full owner. If those parents concluded a commercial lease with an external tenant, the bare owner may now recover the property freely within three years.
Real estate developers with split structures. Some developers work with holding structures in which one company holds the usufruct and another the bare ownership. Upon dissolution or liquidation of the usufructuary company, the same rule applies: a maximum three-year extension for the tenant.
Investors purchasing commercial premises subject to an existing usufruct. Anyone acquiring a property already burdened by a usufruct knows that, after the end of that usufruct, they can be confronted with a running commercial lease for a maximum of three years — no longer for a potentially full nine-year period.
Important nuance: only where the usufructuary « ceases to exist »
The three-year rule does not apply in all situations. Article 3.145 of the Civil Code expressly refers to the case « when the usufructuary ceases to exist ». This covers:
The death of a natural person usufructuary
The dissolution or merger of a legal entity usufructuary
The end of a usufruct by reason of its maximum duration (in principle 99 years for legal entities)
In other cases where the usufruct ends — for example through transfer or waiver — different rules apply. Seek legal advice in such specific situations.
Rights of use granted free of charge
A second important rule under article 3.145 of the Civil Code: rights of use granted free of charge (i.e. without rent) terminate immediately upon the end of the usufruct. No three-year grace period, but immediate termination.
For commercial leases this is rarely relevant — rent is by definition present. But for hybrid structures (for instance a commercial lease with symbolic rent or with counter-performances largely provided in kind) the qualification « free of charge » may give rise to legal debate.
Practical recommendations for lessors
Before signing a commercial lease as a usufructuary:
Inform the tenant transparently of your status as usufructuary. Concealment may constitute a defect of consent (mistake).
Consider having the bare owner co-sign, so that the lease falls outside the scope of the usufruct rule.
In family situations: discuss with your notary how to align the lease with your estate planning.
For bare owners:
Keep track of the commercial leases concluded by the usufructuary. Although you cannot oppose them, it is in your interest to know the running terms.
Upon recovery of the property after the end of the usufruct: the three-year period starts running on the day the usufruct ends, and not on the day you actually take back the property.
For real estate developers:
- When structuring real estate projects with split ownership, factor the three-year term into your planning. This is particularly relevant for long-term developments.
Practical recommendations for commercial tenants
Are you a commercial tenant entering into a lease with a company or natural person who may only be a usufructuary?
Demand transparency. A lessor must comply with its duty to inform. If they are a usufructuary, you need to know — and you must know the identity of the bare owner.
Request the co-signature of the bare owner. This is the best legal protection. With the bare owner's agreement, the lease is fully binding, including after the end of the usufruct.
Structure your depreciation plan around three years. If you carry out substantial fit-out works and the lessor is a usufructuary, bear in mind that you may not be able to recoup those works within three years after the end of the usufruct.
Reius Attorneys in this field
Reius assists lessors, bare owners and commercial tenants alike in matters where usufruct and commercial leasing intersect:
Drafting commercial leases with optimal clauses
Advice on family estate planning involving commercial premises
Guidance for real estate developers on split structures
Litigation regarding the renewal of commercial leases
Our intervention is particularly valuable at the advisory stage, before structures are irrevocably fixed.
Would you like a full overview of your position? Read our guide on the rights and obligations under commercial leases.