Servitudes

Servitudes – Usufruct

Art. 535. Usufruct. Usufruct is a real right of limited duration on the property of another. The features of the right vary with the nature of the things subject to it as consumables or non-consumables.

Art. 540. Nature of usufruct. Usufruct is an incorporeal thing. It is movable or immovable according to the nature of the thing upon which the right exists.

Art. 567. Contracts affecting the usufructuary’s liability. The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct. If the usufructuary leases, alienates, or encumbers his right, he is responsible to the naked owner for the abuse that the person with whom he has contracted makes of the, property.

Art. 603. Disposition of the naked ownership; alienation or encumbrance of the property. The naked owner may dispose of the naked ownership, but he cannot thereby affect the usufruct.

Art. 604. Servitudes. The naked owner may establish real rights on the property subject to the usufruct, provided that they may be exercised without impairing the usufructuary’s rights.

Art. 605. Toleration of the enjoyment. The naked owner must not interfere with the rights of the usufructuary.

Art. 620. Sale of the property or of the usufruct. Usufruct terminates by the enforcement of an encumbrance established upon the property prior to the creation of the usufruct to secure a debt. The usufructuary may have an action against the grantor of the usufruct or against the naked owner under the provisions established in Section 3 of this Chapter. The judicial sale of the usufruct by creditors of the usufructuary deprives the usu­fructuary of his enjoyment of the property but does not terminate the usufruct.

Art. 616. Sale of the property. When property subject to usufruct is sold or exchanged, whether in an action for partition or by agreement between the usufructuary and the naked owner or by a usufructuary who has the power to dispose of non-consumable property, the usufruct terminates as to the non-consumable property sold or exchanged, but as provided in Article 568.1, the usufruct attaches to the money or other property received by the usufructuary, unless the parties agree otherwise. Any tax or expense incurred as the result of the sale or exchange of property subject to usufruct shall be paid from the proceeds of the sale or exchange, and shall be deducted from the amount due by the usufructuary to the naked owner at the termination of the usufruct.

Art. 617. Proceeds of insurance. When proceeds of insurance are due on account of loss, extinction, or destruction of property subject to usufruct, the usufruct attaches to the proceeds. If the usu­fructuary or the naked owner has separately insured his interest only, the proceeds belong to the insured party.

Art. 536. Consumable things. Consumable things are those that cannot be used without being expended or consumed, or without their substance being changed, such as money, harvested agricultural products, stocks of merchandise, foodstuffs, and beverages.

Art. 537. Nonconsumable things. Nonconsumable things are those that may be enjoyed without alteration of their substance, although their substance may be diminished or deteriorated naturally by time or by the use to which they are applied, such as lands, houses, shares of stock, animals, furniture, and vehicles.

Art. 539. Usufruct of nonconsumable things. If the things subject to the usufruct are nonconsumables, the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce, under the obligation of preserving their substance. He is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct.

Art. 557. Possession and use of the things. The usufructuary takes the things in the state in which they are at the commencement of the usufruct.

Art. 559. Accessories. The right of usufruct extends to the accessories of the thing at the commencement of the usufruct.

Art. 550. Right to all fruits. The usufructuary is entitled to the fruits of the thing subject to usufruct according
t? the following articles.

Art. 554. Commencement of the right to fruits. The usufructuary’s right to fruits commences on the effective date of the usufruct.

Art. 555. Non-apportionment of natural fruits. The usufructuary acquires the ownership of natural fruits severed during the existence of the usufruct. Natural fruits not severed at the end of the usufruct belong to the naked owner.

Art. 556. Apportionment of civil fruits. The usufructuary acquires the ownership of civil fruits accruing during the existence of the usufruct. Civil fruits accrue day by day and the usufructuary is entitled to them regardless of when they are received.

Art. 560. Trees, stones, and other material,s. The usufructuary may cut trees growing on the land of which he has the usufruct and take stones, sand, and other materials from it, but only for his use or for the improvement or cultivation of the land.

Art. 561. Mines and quarries. The rights of the usufructuary and of the naked owner in mines and quarries are governed by the Mineral Code.

Art. 562. Usufruct of timberlands. When the usufruct includes timberlands, the usufructuary is bound to manage them as a prudent administrator. The proceeds of timber operations that are derived from proper management· of timberlands belong to the usufructuary.

Art. 552. Corporate distributions. A cash dividend declared during the existence of the usufruct belongs to the usu­fructuary. A liquidation dividend or a stock redemption payment belongs to the naked owner subject to the usufruct. Stock dividends and stock splits declared during the existence of the usufruct belong to the naked owner subject to the usufruct. A stock warrant and a subscription right declared during the existence of the usufruct belong to the naked owner free of the usufruct.

Art 553. Voting of shares of stock and other rights. The usufructuary has the right to vote shares of stock in corporations and to vote or exercise similar rights with respect to interests in other juridical persons, unless otherwise provided.

Art. 541. Divisibility of usufruct. Usufruct is susceptible to division, because its purpose is the enjoyment of advantages that are themselves divisible. It may be conferred on several persons in divided or undivided shares, and it may be partitioned among the usufructuaries.

Art. 542. Divisibility of naked ownership. The naked ownership may be partitioned subject to the rights of the usufructuary.

Art. 543. Partition of the property in kind or by licitation. When property is held in indivision, a person having a share in full ownership may demand partition of the property in kind or by licitation, even though there may be other shares in naked ownership and usufruct. A person having a share in naked ownership only or in usufruct only does not have this right, unless a naked owner of an undivided share and a usufructuary of that share jointly demand partition in kind or by licitation, in which event their combined shares ,shall be deemed to constitute a share in full ownership.

Art. 544. Methods of establishing usufruct; things susceptible of usufruct Usufruct may be established by a juridical act either inter vivos or morris causa, or by operation of law. The usufruct created by juridical act is called conventional; the usufruct created by operation of law is called legal. Usufruct may be established on all kinds of things, movable or immovable, corporeal or incorporeal.

Art. 890. Usufruct of surviving spouse. If the deceased spouse is survived by descendants, the surviving spouse shall have a usufruct over the decedent’s share of the community property to the extent that the decedent has not disposed of it by testament. This usufruct terminates when the surviving spouse dies or remarries, whichever occurs first.

Art. 607. Death of the usufructuary. The right of usufruct expires upon the death of the usufructuary.

Art. 608. Dissolution of legal entity; thirty year limitation. A usufruct established in favor of a juridical person terminates if the juridical person is dissolved or liquidated, but not if the juridical person is converted, merged or consolidated into a successor juridical person. In any event, a usufruct in favor of a juridical person shall terminate upon the lapse of thirty years from the date of the commencement of the usufruct. This Article shall not apply to a juridical person in its capacity as the trustee of a trust.

Art. 545. Modifications of usufruct. Usufruct may be established for a term or under a condition, and subject to any modification consistent with the nature of usufruct. The rights and obligations of the usufructuary and of the naked owner may be modified by agreement unless modification is prohibited by law or by the grantor in the act establishing the usufruct.

Art. 610. Usufruct for a term or under condition. A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition. Art. 611. Term; transfer of usufruct to another person. When the usufructuary is charged to restore or transfer the usufruct to another person, his right terminates when the time for restitution or delivery arrives.

Art. 612. Term; third person reaching a certain age. A usufruct granted until a third person reaches a certain age is a usufruct for a term. If the third person dies, the usufruct continues until the date the deceased would have reached the designated age.

Art. 546. Usufruct in favor of successive usufructuaries. Usufruct may be established in favor of successive usufructuaries.

Art. 547. Usufruct in favor of several usufructuaries. When the usufruct is established in favor of several usufructuaries, the termination of the interest of one usufructuary inures to the benefit of those remaining, unless the grantor has expressly provided otherwise.

Art. 548. Existence of usufructuaries. When the usufruct is established by an act inter vivos, the usufructuary must exist or be conceived at the time of the execution of the instrument. When the usufruct is established by an act mortis causa, the usufructuary must exist or be conceived at the time of the death of the testator.

Art. 549. Capacity to receive usufruct. Usufruct may be established in favor of a natural person oi: a juridical person.

Art. 570. Inventory. The usufructuary shall cause an inventory to be made of the property subject to the usufruct. In the absence of an inventory the naked owner may prevent the usufructuary’s entry into possession of the property. The inventory shall be made in accordance with the rules established in Articles 3131 through 3137 of the Code of Civil Procedure.

C.C.P. Art. 3136. Descriptive list of property in lieu of inventory Whenever an inventory of succession property otherwise would be required by law, the person at whose instance the inventory would be taken may file with the Department of Revenue and in the succession proceeding, in lieu of an inventory complying with articles 3131 through 3135, a detailed, descriptive list of all succession property. This list shall be sworn to and subscribed by the person filing it, shall show the location of all items of succession property; and shall set forth the fair market value of each item thereof at the date of the death of the deceased The privilege of filing a descriptive list of succession property, in lieu of an inventory thereof, may be exercised without judicial authority.

Art. 571. Security. The usufructuary shall give security that he will use the property subject to the usufruct as a prudent administrator and that he will faithfully fulfill all the obligations imposed on him by law or by the act that established the usufruct unless security is dispensed with. If security is required,. the court may order that it be provided in accordance with law.

Art. 572. Amount of security. The security shall be in the amount of the total value of the property subject to the usufruct. The court may increase or reduce the amount of the security, on proper showing, but the amount shall not be less than the value of the movables subject to the usufruct.

Art. 573. Dispensation of security. A. Security is dispensed with when any of the following occur:

1) A person has a legal usufruct under Article 223 or 3252.

2) A surviving spouse has a legal usufruct under Article 890 unless the naked owner is not a child of the usufructuary or if the naked owner is a child of the usufructuary and is also a forced heir of the decedent, the naked owner may obtain security but only to the extent of his legitime.

3) A parent has a legal usufruct under Article 891 unless the naked owner is not a child of the usufructuary.

4) A surviving spouse has a legal usufruct under Article 2434 unless the naked owner is a child of the decedent but not a child of the usufructuary. B. A seller or donor of property under reservation of usufruct is not required to give security.

Art. 576. Standard of care. The usufructuary is answerable for losses resulting from his fraud, default, or neglect.

Art. 577. Liability for repairs. The usufructuary is responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident or force majeure, the normal use of things, or his fault or neglect. The naked owner is responsible for extraordinary repairs, unless they have become necessary as a result of the usufructuary’s fault or neglect in which case the usu­fructuary is bound to make them at his cost.

Art. 578. Ordinary and extraordinary repairs. Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs.

Art. 584. Annual charges. The usufructuary is bound to pay the periodic charges, such as property taxes, that may be imposed, during his enjoyment of the usufruct.