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Part One of the series “Practical Guide to the Lebanese Code of Real Property”, covering Articles 1 through 55 of Decree No. 3339 of 12 November 1930 (Books I and II): the definition of real property and its three categories, the five Ottoman-derived land types, the twelve real rights enumerated in the Code, the right of ownership, the right of tasarrouf over amirié lands, co-ownership in indivision, the right of superficies and the right of usufruct.

Arabic original: تعريف العقارات وأنواع الملكية في القانون اللبناني — الجزء الأول من الدليل العملي لقانون الملكية العقارية.

French version: Définition de l’immeuble et types de propriété en droit libanais — Première partie du Guide pratique du Code de la propriété foncière.

Introduction

This first part opens the series “Practical Guide to the Lebanese Code of Real Property”. It follows the order of the Books of Decree No. 3339 of 12 November 1930 regulating real property and immovable real rights — generally referred to in doctrine and practice under the shorthand designation Code de la Propriété in French, or the Code of Real Property (CRP) in English — and integrates the related Mandate-era texts (Decree No. 186 of 15 March 1926 on delimitation and registration works; Decree No. 188 of 15 March 1926 establishing the Land Registry) at the points where they take their logical place in the sequence.

For counsel advising on Lebanese real-estate transactions from outside Lebanon — whether structuring a foreign acquisition, advising on cross-border estate planning, or assessing the title position underlying a financing — this Part One lays the conceptual foundation that everything else in the series presupposes. Three features of the Lebanese system require deliberate reorientation for practitioners trained in common-law jurisdictions or in non-Mandate civil-law systems:

• a tripartite classification of immovables (by nature, by destination, incorporeal) directly transposed from the French Civil Code, which determines what passes with an immovable on sale, inheritance or mortgage;
• a five-type Ottoman land classification (mulk, amirié, matrouké murféké, matrouké mahmiyé, mewat) that survives intact in the 1930 Decree and continues to govern title in significant tracts of the Bekaa, Akkar, Mount Lebanon and South Lebanon — and to determine which real right (propriété or tasarrouf) can be inscribed on the land register;
• a closed list of twelve real rights, outside which no real right in immovable property can be created, however the parties contract.

The classification of the immovable (mulk or amirié) commands the nature of the real right that can be exercised on it (full ownership or tasarrouf), and the nature of the real right commands what may lawfully be done with the land (constitution of waqf, mortgage, lease, etc.). Subsequent parts in this series — easements, mortgages and vente à réméré, privileges and hypothèques, delimitation and registration works, the Land Registry, pre-emption, and acquisitive prescription — all rest on this foundation.

Scope of this Part: Articles 1 to 55 of the CRP, namely Book I (“Of Real Property”, Articles 1 to 10) and Book II (“Of Ownership”, Articles 11 to 55), with its five chapters: ownership, tasarrouf, indivision, superficies and usufruct.

Note on amendments affecting the scope of this Part: Article 7 (on matrouké murféké immovables) has been amended by Law No. 47 of 24 June 1971 and Law No. 173 of 14 February 2000; Articles 24 to 27 (which governed pre-emption between co-indivisaries and the rules for excluding a co-indivisary from the indivision) were wholly repealed by the Law of 21 December 1954; Article 30 (causes of extinction of the right of superficies) was substantially modified by Law No. 322 of 21 April 2001, which added a third ground of extinction together with rules for indemnification.

I. Definition of real property and the three categories

The general rule: three categories

Real property is divided into three categories: immovables by nature, immovables by destination (the common-law equivalent being roughly fixtures) and incorporeal immovables (Article 1). The tripartition is taken directly from the French Civil Code, the Lebanese legislator retaining its substance and adjusting only the contours of application. The distinction is not theoretical: it directly determines what passes with the immovable on sale, mortgage or inheritance, and what remains movable and falls outside the transaction by operation of law.

Immovables by nature

Immovables by nature are material things that, by their substance, have a fixed and non-transportable situation (Article 2). The provision enumerates:

• lands and mines, taken in the full extent of their surface and subsoil content;
• plants rooted in the soil, as long as they remain adherent (they become movable upon harvest or uprooting);
• constructions: not only buildings used for residential, storage, industrial, hangar and silo purposes, but also technical installations of every kind (bridges, wells, furnaces, dams, reservoirs, tunnels) and, more generally, any assembly of building materials firmly fastened together, whether at the surface or in the subsoil;
• apparatus and pieces adhering to the construction and intended to complete it: balconies, gutters, lightning rods, water pipes — all immovables by nature on account of their integration into the built structure.

Immovables by destination

An immovable by destination is, by its own nature, a movable that the law attaches to the immovable as soon as two conditions are met (Article 3):

1. Unity of ownership: the movable and the immovable by nature must belong to the same owner. Where ownership differs (a machine leased and installed in a factory belonging to a third party), there is no destination, even if the machine is integrated into the operation.
2. Affectation to the service of the immovable: the movable must be devoted to the operation or to the general service of the immovable.

The provision furnishes examples:

• in agricultural operation: animals devoted to farming, agricultural machinery, presses, large barrels used to hold grapes in wineries, pond fish, beehives, silk cocoons, hay and manure used as fertiliser, vine stakes;
• in industrial operation: stocks and all machinery (including small lorries, vans and horses), provided that the building housing them is specially fitted for the purpose.

Express carve-out by the text: the furniture of hotels, furnished apartments, gaming establishments (casinos), public baths and commercial premises is not treated as an immovable by destination even when used in the operation, because it remains transportable without substantial harm to the immovable (Article 3, in fine).

Incorporeal immovables

Incorporeal immovables are (Article 4):

• the real rights and securities bearing on a corporeal immovable;
• real easements (treated in Part Two of the series);
• court actions whose subject is a corporeal immovable: actions in revendication, eviction actions, actions for partition of the indivision, etc.

Classification as an incorporeal immovable has consequences both for the rules of inscription on the Land Registry and for the rules of prescription (treated in Part Five of the series).

II. The five types of immovable property: the surviving Ottoman classification

Lebanese law retains the five-type Ottoman classification of immovables, which determines what real right may be exercised on the immovable and what may lawfully be done with it. This classification is not a historical residue: it continues to produce judicial effects in disputes over agricultural land in the Bekaa, Akkar, Mount Lebanon and South Lebanon, and continues to govern what is inscribed on the feuille réelle (the real folio at the Land Registry). The transition between the Ottoman categories and the 1930 regime preserved the substantive definitions intact; the change operated only at the level of registration mechanics.

Mulks: privately-owned immovables in built areas

Mulks are immovables situated inside built areas as administratively delimited, over which the full right of ownership is exercised (Article 5). Excluded from this definition are immovables situated within the territories of the former autonomous government of Mount Lebanon (1861–1920), which remain governed by local customs and usages.

Amirié: lands whose underlying ownership belongs to the State

Amirié immovables are immovables whose nude ownership (la raqaba / la nue-propriété) belongs to the State and over which a right of tasarrouf — a right of use and disposition distinct from full ownership — may be exercised (Article 6). The tasarrouf-holder enjoys extensive prerogatives (detailed in Section V below) but does not hold the underlying ownership of the land itself. The mulk / amirié distinction directly determines what is inscribed on the real folio: on a mulk, the owner’s name in his capacity as holder of the right of ownership; on an amirié, the name of the tasarrouf-holder in that capacity.

This split-title structure has no direct analogue in common-law jurisdictions, where the closest reference points are leasehold over Crown land or, more loosely, the distinction between legal and equitable title — neither of which captures the amirié concept precisely. Foreign-counsel practice in Lebanon treats amirié tenure as functionally close to fee-simple ownership for most transactional purposes, while attending to two specific constraints: the bar on constituting waqf (see Section V) and the five-year non-use forfeiture rule (Article 19).

Matrouké murféké: lands left to collective use

Article 7 was amended by Law No. 47 of 24 June 1971 and then by Law No. 173 of 14 February 2000, and in its current form provides:

1. Definition. Matrouké murféké immovables are immovables belonging to the State over which a collectivity holds a right of use, the characteristics and extent of which are determined by local custom or by administrative regulations (pastures, dirt paths between fields, etc.).
2. Transfer to the municipality. These immovables are treated as private property of the municipality when they fall within its territorial jurisdiction; the municipal authorities may suppress or modify the right of use over portions of them, subject to the rights of third parties.
3. Restriction on disposal by the municipality. Municipalities are forbidden from selling or otherwise disposing of these immovables without prior approval of the Council of Ministers, on the joint proposal of the Minister of Finance and the Minister of the Interior and Municipalities.

Matrouké mahmiyé: public-domain immovables

Matrouké mahmiyé immovables are immovables belonging to the State or to municipalities that form part of the public domain: shorelines, rivers, main roads, public squares, and the like (Article 8). These immovables are not in commerce and cannot be inscribed on the Land Registry as objects of private appropriation. They may be removed from the public domain and reclassified to another category (in particular to the private domain of the State) by special decree (the mechanism is treated in Part Six of the series). Two additional public-domain regimes remain active alongside Article 8: Decree No. 144/S of 10 June 1925 governing the public domain, and Decree No. 275/LR of 25 May 1926 governing the private domain of the State.

Mewat: unidentified waste lands

Mewat immovables are amirié lands belonging to the State that have not yet been identified or delimited (Article 9). The first occupant, acting under State authorisation, acquires a right of preference within the conditions fixed by the State-domain regulations. This category is practically residual in contemporary Lebanon because of the generalisation of delimitation and registration operations since 1926, but it continues to be invoked in litigation concerning land in remote mountain areas and at municipal boundaries.

III. The closed list of real rights over immovable property

Article 10 enumerates the twelve real rights that may be exercised on immovables in Lebanese law:

1. ownership (propriété);
2. tasarrouf;
3. superficies;
4. usufruct;
5. the right of preference over mewat lands;
6. real easements;
7. mortgage rights (gage immobilier and vente à réméré);
8. privileges and hypothèques;
9. waqf;
10. idjaratayn (double lease);
11. long-term lease (ijara tawila);
12. the option arising from a promise of sale.

This list is exhaustive (numerus clausus): no real right in immovable property may be created outside the twelve enumerated. The rule matters in transactional drafting: a contract that creates an arrangement resembling superficies or usufruct between the parties but does not satisfy the statutory requirements remains a contractual arrangement (a personal right). It is not inscribable on the Land Registry and is not opposable to third parties as a real right.

Mapping the twelve to the series:

• rights 1 to 4 (ownership, tasarrouf, superficies, usufruct) and right 5 (right of preference over mewat): Part One (the present post);
• right 6 (easements): Part Two;
• rights 7 and 8 (mortgage and vente à réméré; privileges and hypothèques): Parts Three and Four;
• rights 9, 10 and 11 (waqf, idjaratayn, long-term lease): outside the series, on account of their limited contemporary transactional weight, and treated where needed in separate studies;
• right 12 (option arising from a promise of sale): Part Five (pre-emption, acquisitive prescription, modes of acquisition).

IV. The right of ownership

Definition and limits

Real-property ownership is the right to use, enjoy and dispose of an immovable, within the limits fixed by laws, decrees and regulations (Article 11, first paragraph). The second paragraph contains a substantial restriction: this right is exercised only over mulk immovables.

Three elements compose the ownership concept as set out in the text:

1. the right of use (usus, jus utendi);
2. the right of enjoyment (fructus, jus fruendi) — that is, the perception of fruits and revenues;
3. the right of disposition (abusus, jus abutendi) — that is, sale, donation, mortgage, exchange, and the like.

The boundaries of these prerogatives are not absolute. They run with whatever laws, decrees and regulations are in force — municipal planning rules, tenancy legislation, the expropriation statute, environmental law, construction regulations, and others. The formulation “within the limits fixed by laws, decrees and regulations” permits the judge to apply these restrictions to the owner of the immovable even when the statutory text post-dates the creation of the ownership.

For foreign-investor counsel, the practical consequence is that the jus abutendi in Lebanon is more closely circumscribed by regulatory overlays (urbanistic, tenancy, environmental) than the formal definition suggests. Title due diligence should always pair the registry inquiry with a review of the applicable municipal master plan and the tenancy status of any tenanted premises.

The right of suite and accession

Article 12 enshrines the rules of droit de suite and accession. The owner of the immovable is entitled to:

• all that the immovable generates (fruits, rents, revenues, interest on sums tied to the immovable);
• everything that joins it accidentally, whether the joinder is natural (new soil deposited by floods, plants acquired) or artificial (a structure built by a third party on the land, plantations effected on it).

The detail of the accession rules is treated in Part Five of the series, because the governing provisions (Articles 931 et seq. of the CRP) sit in Book VII.

The vertical extent of ownership

Ownership of the soil includes ownership of what lies above and below it (Article 13). The owner of a piece of land may accordingly:

• effect any plantations he chooses;
• erect any constructions he chooses;
• undertake excavations to any depth;
• extract from those excavations whatever they may yield.

All this within the limits imposed by laws, decrees and regulations: petroleum legislation, water law, antiquities law, municipal construction regulations, industrial permits, and the like. The “above and below” rule is a default rule that may be split by separate constitutive deeds creating distinct real rights (superficies over the building on top of the land, easement over the subsoil, etc.).

V. The right of tasarrouf over amirié lands

Tasarrouf is the real right that bears on amirié immovables (Article 14). It is functionally analogous to ownership in most of its practical effects, but it differs from ownership in its legal nature: the tasarrouf-holder is not the owner of the underlying property (which belongs to the State) but the holder of a distinct right that the State grants over the immovable.

Definition and object of tasarrouf

Tasarrouf is the right to use, enjoy and dispose of an immovable, within the conditions defined by the CRP and within the limits fixed by laws, decrees and regulations (Article 14). This right is exercised only over amirié immovables. The construction of the text — “use”, “enjoyment”, “disposition” — is identical to the definition of ownership in Article 11, which explains the close similarity of practical effects between the two rights.

Fruits and products

The rules governing the tasarrouf-holder in relation to fruits and accidental accession are identical to those governing the owner (Article 15; see commentary on Article 12 above).

Limits of tasarrouf over the land

The tasarrouf-holder over an amirié land may (Article 16):

• effect any plantations;
• erect any constructions;
• undertake excavations to any depth;
• extract from the excavations any building materials he chooses;
• dispose freely of those materials.

Article 16 expressly reserves: all other products apart from building materials (reserved to the State as nude owner), and subjects the entirety of these prerogatives to the laws, decrees and regulations (antiquities law, mining law, construction regulations, etc.).

The substantial limit: no waqf over amirié land

Articles 17 and 18 set out the most important limit on the prerogatives of the tasarrouf-holder:

• Article 17: the tasarrouf-holder over an immovable may carry out any act of disposition save for the constitution of a waqf;
• Article 18: any waqf constituted after the promulgation of the CRP over an amirié land is null and deemed not to have been made.

The prohibition is unambiguous: it is no longer possible to constitute a new waqf over amirié land since 1930. Waqfs in existence before that date over amirié land remain governed by a special regime that depends on the type of waqf and the mode of its constitution (consult, as appropriate, the classical doctrine on waqf property).

Extinction of tasarrouf by non-cultivation or non-use

The right of tasarrouf is extinguished by non-cultivation or non-use of the land over a period of five years (Article 19).

This rule produces a sharp practical effect on abandoned amirié agricultural land. If the tasarrouf-holder leaves the land unused for five consecutive years, the State is entitled to recover full ownership (because the tasarrouf lapses and the underlying ownership remains with the State). In practice, this rule requires heirs of tasarrouf-holders who are not exploiting amirié agricultural land to create a perceptible use — a lease, a simple cultivation, a pasturage arrangement — to avoid lapse. Foreign counsel acquiring an interest in amirié land for investment or estate-planning purposes should pair the inscription with a documented use plan.

VI. Co-ownership in indivision

Preliminary note. Articles 24, 25, 26 and 27 of the CRP (which governed pre-emption between co-indivisaries and the rules for excluding a co-indivisary from the indivision) were wholly repealed by the Law of 21 December 1954 (organising the exit from the indivision). Any treatment that presents them as in force is a legal error, and doctrinal developments pre-dating 1954 on the rules of exclusion of a co-indivisary based on these articles no longer have practical value. The current rules governing the exit from the indivision derive from the 1954 Law and from the provisions of the Code of Obligations and Contracts relating to société.

The general rule: no disposition over another’s share

Article 20 provides that:

• no co-indivisary may exercise his rights over the whole immovable or over a determined portion of it without the consent of the other co-indivisaries;
• he may not exercise any right over the share of another co-indivisary without that co-indivisary’s authorisation;
• the authorisation of the absent co-indivisary is presumed permanently in respect of acts of management and administration of the immovable, save where the absent suffers prejudice reaching one-fifth of his right or more.

The last rule (presumed authorisation, capped at one-fifth) is specific to acts of administration and does not apply to acts of disposition. The practical distinction: short-term letting of the immovable or repair works fall within administration, where the absent’s authorisation is presumed; sale or mortgage falls within disposition, where nothing is presumed and express consent is required.

Organising enjoyment and distributing revenues

Co-indivisaries agree among themselves on the modalities of enjoyment of the indivise immovable; the distribution of revenues is made in proportion to the indivise shares, save contrary agreement (Article 21). The text is supplementary in nature: the agreement prevails over the rule, and the rule operates only in the absence of agreement.

Allocation of charges: administration, repair, maintenance

Each co-indivisary is bound to bear — in proportion to his share — the following charges (Article 22):

• administration expenses;
• repairs;
• maintenance;
• taxes and levies charged on the common asset.

The co-indivisary who has advanced the expenses has a right of reimbursement from the others, save where those expenses were incurred for improvement or embellishment only (and not for maintenance), in which case they remain on the account of the co-indivisary who incurred them. This last rule is protective: a co-indivisary cannot impose on the others expenses of agrément or embellishment to which they have not consented, even where these expenses would serve the immovable aesthetically.

Right of disposition over the share — with a substantial restriction

Article 23 provides that each co-indivisary:

• disposes freely of his rights in the immovable;
• may cede them to a third party or constitute a hypothèque over them, without the authorisation of his co-indivisaries;
• but may not pledge his share.

The distinction between hypothèque and pledge (gage) drawn by the text is substantial. To the extent that the indivise share is not materially determined before partition, the exclusion of pledge (which requires a determined object) remains in the text, while the immovable hypothèque (whose effects are governed by Book V of the CRP) remains available.

VII. The right of superficies

Definition

Superficies is the right of the owner of buildings, works or plantations existing on land belonging to another (Article 28). In other words, superficies separates ownership of what stands on the soil (the building, the plantation) from ownership of the soil itself, each having a distinct owner with proper rights and obligations.

The closest common-law analogues are the building lease and the strata-title arrangement, but neither captures the Lebanese institution precisely. The Lebanese droit de superficie is a true real right, opposable to third parties through Land Registry inscription, and it survives the alienation of the soil.

Cession, hypothèque and easement

The right of superficies may be ceded, may be the subject of a hypothèque, and easements may be imposed on the immovables it burdens — provided these operations remain compatible with the exercise of the right of superficies (Article 29). This last restriction operates as a double limit: it is impermissible to impose an easement that would empty superficies of its substance (for example, a right of passage over a building that would prevent its residential use), and the superficiary cannot in turn constitute an easement exceeding the bounds that the nature of his right allows.

Extinction of the right of superficies

Article 30 was substantially modified by Law No. 322 of 21 April 2001, and now sets out three grounds for the extinction of the right of superficies:

1. Union of the two rights in the same hands: by the reunion of the right of superficies and the right of ownership of the land in the same owners and in the same proportions. This extinction is automatic: the Land Registrar proceeds ex officio to the cancellation of the right of superficies upon realisation of this ground.
2. Destruction of the building or disappearance of the plantations covered by the right: structures that have become unfit for the use to which they were destined are assimilated to destroyed structures; the right-holder may not rebuild them for further use, nor replant the plantations after their disappearance with a view to reviving the lapsed right. The superficiary may not add new constructions either. The right of superficies remains confined to the buildings, works or plantations originally covered.
3. Economic prejudice to the land (the ground added by Law 322/2001): where it appears that the continuation of the right of superficies hinders the exploitation or development of the land, or where the benefit drawn from it is so slight that it does not match the economic harm suffered by the land on its account.

Procedure. In case (1), the Land Registrar cancels the right of superficies as a matter of course. In cases (2) and (3), the extinction is established by a judgment having the force of res judicata, rendered on the action of the landowner before the single-judge civil court, applying the rules of procedure followed before the summary procedures judge.

Indemnification. The landowner must pay the superficiary an indemnity fixed by the competent court, not exceeding three times the value of the buildings, works or plantations covered by the right at the date of the action, in cases (2) and (3).

The freeze rule: no new superficies after 1930

Article 31 — in its original wording, unamended since 1930 — provides that:

No right of superficies can be created from the date of promulgation of the present decree.

In short, since 12 November 1930 no new right of superficies may be constituted over an immovable in Lebanon. Only superficies rights born before that date subsist. On the extinction of the last surviving superficies, the institution will disappear as a contemporary real right in Lebanon.

Practical consequence. When a right of superficies is asserted, counsel must first establish that the right was born before 12 November 1930 (by title, by inscription in the former Ottoman registers, by delimitation and registration records, etc.). Any subsequent deed purporting to create a new superficies is null under Article 31. Contemporary arrangements that economically resemble superficies (building on another’s land in a commercial or development transaction) must take other forms: a long-term lease, an exploitation-right contract, a development agreement, or a joint-venture company between the landowner and the developer.

VIII. The right of usufruct

Usufruct is the most widely-used real right in everyday life. It arises through succession, through donations with reservation of usufruct, through wills and through many family arrangements. The CRP devotes twenty-four articles (32 to 55) to usufruct, structured as one definitional chapter and four sections covering the life-cycle of the right from constitution to extinction. The institution remains central to contemporary patrimonial transmission strategies.

General rules of usufruct

#### Definition and nature

Usufruct is a real right to use and enjoy a thing belonging to another, extinguished necessarily on the death of the usufructuary (Article 32). The second paragraph adds a substantial restriction: usufruct may not be constituted in favour of legal persons.

Four elements emerge from the text:

1. a real right: it bears on the immovable itself, not on a person;
2. a thing belonging to another: the usufructuary is not the full owner (where the two qualities meet in one person, they merge and the right is extinguished);
3. use and enjoyment, without disposition: the usufructuary does not sell the asset and does not mortgage it;
4. a human lifespan: it ends necessarily on the death of the usufructuary and is therefore not transmissible to heirs; it cannot be constituted in favour of a legal person (company, association, foundation) because a legal person has no biological lifespan and its duration may be deliberately prolonged — which would defeat the bounds of usufruct as a temporary right by nature.

#### Constitution of usufruct

Usufruct is constituted by the mere will of the parties and may be created for a term or under a condition (Article 33). The text is flexible: it imposes no specific form for the constitution of the right beyond the Land Registry inscription rules required for opposability to third parties, and leaves the parties free to contract for usufruct of determined duration or under a suspensive condition.

#### Subject-matter of usufruct

In immovable matters, usufruct may be constituted over the following rights (Article 34):

1. ownership;
2. tasarrouf;
3. superficies;
4. idjaratayn;
5. long-term lease.

The usufructuary may accordingly be usufructuary over mulk land, over amirié land (in the hands of the tasarrouf-holder), over an existing building in its capacity as superficies, or over an idjaratayn or long-term lease contract. Each type produces its own effects on what accrues to the usufructuary in fruits and on the duty of care imposed on him.

Estate-planning practice. The most widely-used arrangement in Lebanon is for a parent to donate the bare ownership of an immovable to his children while reserving usufruct for himself and his spouse for life. This achieves two objectives: (1) transferring ownership of the asset to the next generation when the parents are in a position to do so financially and from a tax perspective, and (2) ensuring the parents’ use and enjoyment of the immovable for as long as they are alive. Foreign-resident families holding Lebanese real estate frequently structure the donation together with the inscription so that the usufruct burden is opposable from registration.

Section I — Obligations of the usufructuary before entry into enjoyment

Before entering into enjoyment, the law subjects the usufructuary to two preliminary obligations — both of which may be displaced by the constitutive deed.

#### Inventory and surety

Before entering into enjoyment, the usufructuary must (Article 35):

1. draw up an inventory of the immovables to record the condition of each immovable on his entry into the usufruct;
2. provide a solvent surety guaranteeing the restitution of the immovable in acceptable condition at the end of the usufruct.

The usufructuary may be exempted from both obligations by express stipulation in the constitutive deed.

#### Modalities of the inventory

The inventory of immovables must be drawn up in the presence of the owner or after his regular convocation, and it must be drafted by a notary public at the usufructuary’s expense (Article 36). The usufructuary may agree with the bare owner (provided both parties are of age and have contractual capacity) to establish the inventory amicably and without expense.

#### Surety provided late

If the surety is furnished late, the fruits perceived by the owner in the interval are restored to the usufructuary. The surety may be replaced by a pledge or hypothèque over property considered sufficient (Article 37).

#### Default of surety

In the absence of a surety or any other security from the usufructuary, the immovables over which he holds a right of usufruct are leased or assigned to a judicial receiver whose remuneration is drawn from the fruits of the immovable (Article 38).

Drafting note. The majority of constitutive deeds in family arrangements contain an express dispensation from surety and inventory, which Article 35 expressly permits. However, in commercial arrangements or where the usufructuary is outside the owner’s family (a usufruct in favour of a third party as part of a lease-back arrangement, for example), it is advisable to retain these obligations to protect the bare owner’s rights.

Section II — Rights of use and enjoyment of the usufructuary

#### Scope of the right of use

The usufructuary has the right of use — that is, the use of the immovable for his personal benefit or interest — which extends to the limit reached by the owner’s right. It includes the right to exercise easements, and the rights of hunting and fishing, unless the owner had leased those rights before the constitution of the usufruct (Article 39).

#### Right to fruits

The usufructuary has a right to the fruits of the immovable: the natural or monetary products that the immovable yields at regular intervals without diminution of the substance of the immovable (Article 40). The fruits include:

• the rent from leasing the rights of hunting and fishing;
• the products of mines (operated and open-cast) and quarries, where these accrue to the owner and provided the mine or quarry was opened before the start of the usufruct (the usufructuary cannot therefore open a new mine that would diminish the substance of the land);
• trees yielding produce at regular intervals (for the consumption of their wood or for sale).

#### Distribution of fruits at the beginning and end of the usufruct

At the beginning and at the end of the usufruct, the distribution of fruits not yet harvested or remaining unharvested is made between the usufructuary and the owner in proportion to the duration during which the usufruct was in force and the duration during which it was not, with regard to the period of fruit-production whether annual or otherwise (Article 41). Neither the owner nor the usufructuary may recover the costs of ploughing; the cost of fertilisers and seed used to prepare the harvest at the beginning or end of the usufruct is nonetheless accounted for in his favour.

#### Respect for leases pre-dating the usufruct

The usufructuary must respect the leases concluded by the owner before the usufruct began. As for leases concluded by the usufructuary, they cease to be opposable to the owner three years after the end of the usufruct (Article 42).

The last rule protects the bare owner: the usufructuary cannot tie the immovable into long-term lease contracts that would continue to bind the bare ownership after the extinction of his usufruct. The three-year period after the end is the maximum permitted.

Drafting note. When letting an immovable subject to a usufruct, the lessor (whether the usufructuary or the bare owner) should advise the lessee that the opposability of the lease to the future owner (after the extinction of the usufruct) is limited to three years after that extinction where the lessor is the usufructuary. Failure to advise exposes the lessee to eviction after the extinction of the usufruct and exhaustion of the three-year protection period.

#### Right to assign the usufruct

The usufructuary may assign his right, gratuitously or for value, save contrary clauses in the constitutive deed. The right of usufruct remains attached to the person of the assignor after the assignment; the assignee is therefore not released from his obligations toward the bare owner. The right of usufruct is extinguished on the death of the assignor, not on the death of the assignee (Article 43).

This rule is precise and operational: the usufructuary who assigns his usufruct to a third party (by selling his usufruct, for example) does not exit the arrangement definitively; he remains liable for the obligations of the usufruct, and the right remains tied to his own life and not to that of the assignee. Without this rule, the usufructuary could circumvent the condition of “extinction on the death of the usufructuary” by assigning to a younger person.

Section III — Obligations of the usufructuary during his enjoyment

#### Standard of care

The usufructuary must enjoy the immovable as a diligent and care-taking owner, and in particular (Article 44):

• inform the owner of any encroachments by third parties on the immovable (failing which he is liable for the damage suffered by the owner);
• continue the performance of insurance contracts previously concluded and pay the premiums;
• follow, in the use and enjoyment of the immovable, the practices of prior owners — particularly as to the destination given to the buildings, the mode of cultivation of the land and the exploitation of forests and quarries — with the option of bringing fallow land into cultivation and, more generally, of improving cultivation methods.

The “diligent and care-taking owner” standard is an objective one, measured against the prudent average owner. It is not enough for the usufructuary to invoke his habitual conduct; his conduct must conform to what is expected of a prudent owner.

#### Allocation of charges

Property taxes of all kinds are on the usufructuary, as are maintenance repairs to the immovable. Major repairs — those that renew an important part of the immovable and call for out-of-the-ordinary expenditure — are by contrast on the bare owner (Article 45).

#### No reconstruction obligation in case of destruction

Neither the bare owner nor the usufructuary is bound to rebuild what has collapsed from age or force majeure. However, if the destruction follows a casualty event and the destroyed immovable was insured wholly or in part, the value of the indemnity may, at the request of either the bare owner or the usufructuary, be applied to the reconstruction or repair of the immovable (Article 46).

#### Contribution to the repayment of a debt requiring sacrifice of capital

Where a debt must be repaid that requires the sacrifice of part of the capital, the usufructuary must contribute to the repayment of the debt by a proportional reduction of his revenues, in the following manner (Article 47):

1. the owner must pay the necessary capital, and the usufructuary must account to him for interest for the duration of the usufruct;
2. the usufructuary nonetheless retains the option to advance the capital himself, in which case the owner must reimburse him the capital (without interest) at the expiration of the usufruct.

The expenses in which the owner and the usufructuary participate, as mentioned in Article 47, include (Article 48):

1. the cost of major repairs;
2. extraordinary charges imposed on the immovable during the usufruct (a special war tax, an indemnity due to the concessionary of marshland-drainage where the drainage is imposed by public authority, etc.);
3. the share charged on the immovables by an inherited debt, where the usufruct extends to all of the deceased’s immovables. To determine this share, the value of the immovables enjoyed by the usufructuary is evaluated, as may be necessary, against the value of the totality of the estate.

#### Immunity of the usufructuary from a debt secured on the immovable

The usufructuary is not, in principle, liable for the debt secured by a hypothèque on the immovable he enjoys (Article 49). The existence of a pre-existing pledge or hypothèque on the immovable does not transfer the secured debt into the patrimony of the usufructuary. The debt remains the affair of the bare owner; the enjoyment open to the usufructuary is naturally affected if the security is enforced against the immovable.

Section IV — Extinction of the right of usufruct

#### Grounds of extinction

The right of usufruct is extinguished on one of six grounds (Article 50):

1. arrival of the term (where constituted for a determined duration in the constitutive deed);
2. death of the usufructuary;
3. total loss of the thing;
4. renunciation by the usufructuary;
5. judicial forfeiture for abuse of enjoyment (detailed in Article 53 below);
6. confusion: the reunion of the qualities of usufructuary and owner in one person.

This extinction does not produce its judicial effects until the cancellation of the inscription on the Land Registry. The right of usufruct is, as the case may be, transferred to insurance proceeds or to the indemnity paid on expropriation for public utility.

Note on substitute indemnity. If the immovable is expropriated, the right of usufruct does not lapse; it is transferred to the expropriation indemnity. The same applies if the immovable is destroyed and was insured: the right of usufruct is transferred to the insurance indemnity. This is a protective rule that ensures the objective subsistence of the usufruct even where its original subject-matter has disappeared.

#### Liability of the usufructuary for deterioration

On the expiration of the usufruct, the usufructuary is liable to the owner for the deterioration caused to the immovable by his fault. He is entitled to no indemnity for the improvements he made without the owner’s consent. However, where an improvement and a deterioration have occurred concurrently, a set-off is made. As for new constructions effected by the usufructuary and plantations he made, their regime is governed by the provisions of Article 218 of the CRP (treated in Part Five of the series, in connection with the rules of accession) (Article 51).

#### Particular rule on the destruction of a building

If the usufruct bore only on a building and that building was destroyed by fire, by another casualty or by age, the usufructuary is not entitled to enjoy either the land or the building materials (Article 52). The position is the reverse if the usufruct extended to the whole estate of which the building formed a part — subject to the application, in both hypotheses, of the final provisions of Article 46 (use of the insurance indemnity for reconstruction).

#### Judicial forfeiture for abuse of enjoyment

The usufructuary may be deprived of his right by judicial decision, on action by the bare owner, for abuse of enjoyment — in particular where he has caused damage to the immovable or has allowed it to deteriorate through negligence.

In this case, the creditors of the usufructuary are permitted to intervene in the proceedings, to offer to repair the damage and to provide guarantees for the future.

The judge, depending on the gravity of the circumstances, may either:

1. pronounce the absolute forfeiture of the right of usufruct; or
2. order that the immovable be restored to the bare owner only on condition of paying the usufructuary — or his successor in right — a fixed annual sum until the term assigned to the usufruct (Article 53).

The second option, rarely applied in practice but inscribed in the text, converts the right of usufruct into an annual payment obligation on the bare owner, and strikes a balance between protecting the immovable from neglect and not depriving the usufructuary entirely.

#### Usufruct unaffected by sale of the bare ownership

If the bare owner sells the immovable subject to the usufruct, the sale in no way modifies the right of the usufructuary, who continues to enjoy it until he has expressly renounced it (Article 54). The rule is a fundamental protection: the inscribed right of usufruct follows the immovable into the hands of the purchaser, the transaction does not extinguish it, and the usufructuary’s consent to the sale is not required.

#### Protection of the usufructuary’s creditors against prejudicial renunciations

The creditors of the usufructuary may sue for the annulment of the renunciation where it is prejudicial to their interests (Article 55). The “renunciation” here is the usufructuary’s renunciation of his right (the fourth cause of extinction in Article 50). If the usufructuary renounces his usufruct to harm his creditors (for example, to deprive them of the fruits of the immovable that would otherwise enable forced recovery of their claims), the creditors may obtain the annulment of the renunciation in order to pursue recovery from the fruits of the usufruct.

Conclusion and outlook for Part Two

This first part has covered the theoretical and practical foundation of the Lebanese Code of Real Property: the three categories of immovables, the five Ottoman land types that the 1930 Decree preserved, the closed list of twelve real rights, the right of ownership over mulks, the right of tasarrouf over amirié lands, the indivision (with the reminder of what the Law of 21 December 1954 repealed), superficies (frozen by Article 31 since 1930 and whose grounds of extinction were modified by Law 322/2001), and the right of usufruct in its four phases: before entry into enjoyment, exercise of use and enjoyment rights, obligations during enjoyment, and extinction.

Everything that follows in the series presupposes mastery of this foundation. Determining the nature of the real right (ownership or tasarrouf, usufruct or superficies, indivise or partitioned right) is a precondition to assessing what may lawfully be done with it: what type of sale, what type of mortgage, what type of lease, and what type of Land Registry inscription.

In Part Two, we enter the world of real-property easements: the definition, the three categories of easements (natural, legal, conventional), legal easements created in the public interest (and in private interest), conditions for the exercise of easements, and the grounds for their extinction — in light of Articles 56 to 118 of the CRP. The subject is operationally rich in disputes over rights of way between parcels, water and view rights, neighbouring rights between adjoining buildings, and conventional easements created by special deed.

Practical tool: to compute the registration fees for any real-estate transaction (sale, mortgage, mortgage release, constitution of a usufruct), see Lebanese Real Estate Registration Fees Calculator and our complete guide to real-estate registration fees.

Related Posts in This Series

This series covers the Lebanese Code of Real Property in eight parts.

• Part One — Definition of Real Property and Types of Ownership (you are here)
• Part Two — Real-Property Easements
• Part Three — The Immovable Pledge and the Vente à Réméré
• Part Four — Privileges, the Mortgage, and the Forced Sale
• Part Five — Promise of Sale, Right of Pre-emption, and Acquisitive Prescription
• Part Six — The Land Registry
• Part Seven — Land Delimitation and Registration Works
• Part Eight (final) — Condominium Ownership of Built Immovables