-The proceeds of the sale are only used to repay the loan, what remains goes to the heirs, whereas in the system used here, the property belongs entirely to the rest, even if it has paid almost nothing because the person died three months later. I guess “rest” would be the right word I couldn`t find for ownership without the right of use (the counterpart of “life interest”)? Finally, what about the other common use I mentioned in my PO: buying a senior`s home/property for an annual payment (or less commonly, a lump sum) while retaining a lifetime interest in the house? Is this a well-known practice in common law countries or rather unknown? In other cases, the same effects of control were taken into account. In Southern Airways v. In DeKalb County, the Georgia Supreme Court recognized that, despite the five-year presumption, if the parties intended that the tenant had only the right to own and use the leased premises and not an interest in the leased premises, the lease should be interpreted as a usufruct to a landlord-tenant relationship.57 In particular, because DeKalb County waived its rights to “control, improvement, inspection and supervision of premises with the right of others to use the facilities,” when it transferred land to Southern Airways Company for use as an airport under a 15-year lease, the Court found that prima facie evidence of a property had been nullified for years by the owner`s strong reserve of control.58 As in the years following Southern Airways v. Courts in DeKalb County, Georgia, often revisit the “lack of dominance or control that distinguishes the case.” 59 I remember reading the story of the man who bought Jeanne Calment`s mansion, subject to its lifetime lease (or whatever factual legal term is equivalent), when she became known as the oldest living human being. Accidentally about him, which has nothing to do with usufruct or one of his legal nomenclatures, Mrs. Calment was employed in a store frequented by Vincent VanGogh in his youth and knew him personally, albeit somewhat casually. When one of the films about him came out, an enterprising journalist went to interview her – her memories of him as a living person she had known were very interesting. Georgian jurisprudence makes it clear that each case is assessed on the basis of its own facts and circumstances.26 Nevertheless, Georgian courts are consistent in their examination.
To determine whether a contract transfers usufruct or succession for years, courts conduct a balancing test that takes into account several factors in determining the intention of the parties. However, this balancing test can be complicated, as agreements may contain provisions indicating inheritance for years, while other provisions provide for restrictions that are more typical of granting usufruct.27 In some scenarios, there are even sections of agreements that “indicate usufruct in some respects, but which are otherwise characteristic of an estate for years”. 28 Nevertheless, the Georgian courts first assess the will of the parties by considering the agreement as a whole, taking into account its general characteristics, and then taking into account the specific provisions of the lease29, analysing key factors such as: (1) the express intention of the parties; (2) the length of the mediation period; and (3) the right of control provided for in the treaty.30 The concept of usufruct derives from the concept of ownership in Roman civil law. In civil law theory, there are three aspects of property law: usus, fructus and abusus. Customary is the right to use the property; frucutus is the right to take the fruits of the property; Abusus is the right to sell or modify ownership. Usufruct unites the rights of usus and fructus in one person, while another person retains the missusus. In addition to the technical differences in the Georgia Code, there are several important differences in characterization. These distinctions include, above all, the level of rights and privileges conferred on the tenant or beneficiary. Usufructuaries cultivate the owner-tenant relationship, “with privileges granted to tenants who have had less interest in real estate than in real estate for years”. 15 In other words, usufruct gives the tenant the right to use and enjoy the property, but refrains from affecting or altering the substance of the transferred property.16 However, the estate places the beneficiary or tenant under the “absolute control” of the estate for years, with “unlimited ownership of the premises”. 17 To put it more simply, under Georgian law, the tenant of an estate is regarded as the owner for years, but the tenant of a usufruct is not.
In contrast, under the Inheritance and Bowel Act, all heirs, both the surviving spouse and the children, generally have a direct percentage interest in the estate assets. If they cannot agree on how the estate will be handled, each heir generally has the right to request that the estate be dissolved and that the proceeds be immediately divided according to the percentages set out in the laws on inheritance or intestate succession. Practitioners generally assume that long-term leases in Georgia mediate a property for years. Term is usually longer than five years, and tenants often have ample dominance and control over the property to build certain improvements. While the reservation of a certain degree of control by the landlord does not automatically remove the presumption that the lease agreement transfers assets for years, the landlord and tenant may stipulate that the inheritable property contract is intended to confer mere usufruct, is not transferable without the owner`s consent, and is not subject to sale and sale. All this to clearly circumvent the assumption that an estate has been transferred for years.