Facts
The present judgment addresses the possibility for the bare owner to act against the usufructuary who does not fulfill their ordinary maintenance and repair obligations regarding the property subject to the usufruct. The Federal Court had to decide whether, during the usufruct, the bare owner can, in addition to the special measures provided for in the Civil Code, act under the provisions of the Code of Obligations against the defaulting usufructuary.Considerations
According to the prevailing doctrine, the bare owner can put the usufructuary on notice to carry out the ordinary maintenance and repairs, and obtain authorization from the judge, pursuant to Art. 98 para. 1 CO, to have these works carried out by a third party at the expense of the usufructuary. This opinion is criticized by some authors, who believe that the bare owner has no enforceable claims against the usufructuary during the usufruct.
However, the Federal Court rejects this criticism and accepts that the bare owner can act against the defaulting usufructuary. Indeed, the obligations of the usufructuary provided for in Art. 764 to 767 CC do not become due only upon the termination of the usufruct, unlike certain other claims. The bare owner must therefore be able to safeguard their interest in…