Registering usufruct of a house: Advice & Information

Questioner

As a father, I bought a house for my child with the sole intention that the child would live there and thus have the usufruct. The purchase agreement at the time was a modified standard NVM purchase agreement from the real estate agent, and this included a clause indemnifying the seller that the use was "personal use." In hindsight, I understand that the purchase agreement with the notary should have already stated that this would constitute a right of usufruct for the child. My question: Can I and the child draw up a separate agreement to establish this right of usufruct? As far as I know the law, any agreement between two parties is legally valid (even verbal), so I feel that putting this right in writing and signing it should be sufficient. Is this correct, or is there some loophole in the system that dictates this is only permitted by notarial deed?

Questioner

Thank you for your question. However, it's not entirely clear to me why you would want to establish a usufruct right in favor of your child. The usufruct structure is usually used when transferring a parental home during the lifetime of (one of) the parents, with the aim of avoiding inheritance tax upon the parent's death. In that case, the child acquires ownership of the home (through purchase or gift), and the parent, for example, receives the usufruct until their death. In your case, you can, of course, always allow your child to live in the home. I also can't understand the "personal use" provision in the deed of sale. This could be because it might be an apartment right. Is that the case? In the Netherlands, a usufruct on immovable property (or other registered property) is established by the registration of a notarial deed in the public registers.

Questioner

First of all, thank you for your quick response! To clarify a few things: I've been living abroad for a long time. The child in question wanted to return to the Netherlands, and a house was purchased there specifically for that purpose. That house is and will remain my property; the child can simply live there rent-free. Since then, the child has declared usufruct on their tax return; I declare the bare ownership on my tax return in the Netherlands (because I own a house there) = the WOZ value - the same usufruct value. The tax authorities now claim that the purchase deed states "personal use" and doesn't establish the right of usufruct, and that my tax return is therefore incorrect. Furthermore, there's no vacancy value ratio because no lease agreement was drawn up and no rent was agreed upon. The tax authorities therefore want to charge the full WOZ value. I understand the logic of your answer to some extent, but the term "usufruct" seems a bit confusing to me. Isn't the usufruct the child must declare in the tax return exactly the same as the "right to usufruct" that you and the tax authorities are referring to? I feel the tax authorities' reasoning here is flawed and applies a double standard. On the one hand, the child must declare a high degree of usufruct, and on the other, I must also declare the full WOZ value. The term "usufruct" is then used as a lever in two opposing directions to achieve the maximum tax result. The child receives a high tax assessment because it exists; I receive a high tax assessment because it doesn't exist...