Published on December 08, 2025
Emphyteusis and usufruct are two important mechanisms in Quebec civil law. They allow a person to use property belonging to someone else while respecting the limits imposed by law. These rights of use offer different advantages depending on the needs of the parties. Our firm can help you choose between emphyteusis and usufruct, or understand their implications in a real estate or estate-planning project.
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In Quebec civil law, there are several ways for a person to use property belonging to another. Among these, emphyteusis and usufruct occupy a particular place. These rights allow the enjoyment of property without owning it. However, they pursue different objectives and grant unequal rights.
Emphyteusis : a long-term and constructive right of use
Emphyteusis, defined in section 1195 of the Civil Code of Quebec, grants a person, called the emphyteuta, the right to fully use an immovable belonging to someone else. It also allows them to derive benefits from it while preserving the existence of the property. In addition, the emphyteuta must make permanent improvements, such as constructions or plantings.
This right is always temporary. Its duration is a minimum of 10 years and a maximum of 100 years (s. 1197 C.C.Q.). During this time, the emphyteuta has almost all the powers of the owner. They may occupy, lease, alienate, or hypothecate their right (s. 1200 C.C.Q.). In return, they assume significant obligations, including :
- Carrying out the work set out in the constituting act;
- Paying property charges (s. 1205 C.C.Q.);
- Bearing repairs, even major ones (s. 1203 C.C.Q.);
- And returning the immovable in good condition at the end of the emphyteusis, along with the constructions and improvements made (s. 1210 C.C.Q.)
Usufruct : a right of use limited in duration and substance
Usufruct, provided for in section 1120 C.C.Q., grants its holder, the usufructuary, the right to use a property and receive its income. However, they must preserve its substance. In other words, the usufructuary may profit from the property (for example, by receiving rent from an immovable). However, they may not alter its nature or dispose of it.
Usufruct may be created by contract, by will, or by law (s. 1121 C.C.Q.) and may not exceed 100 years. If no duration is specified, it is presumed to last 30 years (s. 1123 C.C.Q.). The usufructuary must maintain the property and assume maintenance repairs (s. 1151 C.C.Q.). Major repairs, however, remain the responsibility of the bare owner.
At the end of the usufruct, the property returns to the bare owner in its existing condition. There is no compensation for improvements made, except in certain cases (s. 1138 C.C.Q.).
Thus, usufruct is often chosen in estate or patrimonial planning because it allows the transfer of income from a property without transferring ownership.
Main differences to remember
| Aspect | Emphyteusis | Usufruct |
|---|---|---|
| Nature of the property | Immovable only | Movable or immovable |
| Duration | 10 to 100 years | Up to 100 years (30 years by default) |
| Rights granted | Almost all rights of the owner | Right of use and enjoyment only |
| Main obligations | Build, maintain, pay property charges | Preserve the substance, maintain the property |
| Purpose | Increase the value of the property | Allow use and receipt of income |
| End of the right | The owner recovers the immovable and improvements | The property returns to the bare owner, without compensation |
Conclusion
Although both confer a right of use over another’s property, emphyteusis and usufruct differ in their scope and legal effects. Emphyteusis aims at the long-term enhancement of an immovable, while usufruct allows temporary use focused on receiving income. The choice between one or the other will depend on the parties’ needs and the intended purpose—whether a real estate project, estate planning, or asset structuring.
If you wish to obtain advice on emphyteusis or usufruct, our firm can help you analyze your situation. To discuss your case, contact our team or visit our page on real estate law.