last update 1-01-2003
Louisiana's Usufruct and Right of Habitation
When we look at a complete property owned by a
person, it is fair to say that the ownership of that property
is the right that confers on the owner direct, immediate and
exclusive authority over the property. He may use, enjoy
and dispose of the property.
When two or more people own a property together,
it is referred to as ownership in "indivision." In this case,
each person owns an undivided interest in the property.
Neither own any particular piece of the property because
each own a portion of the whole.
A common division of ownership under Louisiana
law is when one person has the use of the property and
another has the ownership of it. The person with the use is
said to have a usufruct of the property whereas the owner is
called the naked owner.
USUFRUCT
Usufruct is a real right in a property owned by
another, normally for a limited time or until death. Simply
stated, it is the right to use the property, to enjoy the fruits
and income of the property, to rent the property out and to
collect the rents, all to the exclusion of the underlying real
or naked owner. The usufructuary has the full right to use
the property but cannot dispose of the property nor can it be
destroyed.
For a married couple living in community, La Civil
Code Art 890 grants an automatic usufruct to the surviving
spouse over all of the community property unless it is
voided by a will. Thus, the surviving spouse has total use
of the property but only owns « of it. The total use
includes the right to exclude the children, or naked owners,
from the property while that spouse has the usufruct.
Unless confirmed for life in a will, the legal usufruct of Art
890 terminates upon the remarriage of the surviving spouse.
It would also terminate at the death of that spouse and the
full ownership of the property would then vest in the
children or other descendants.
If there is a will but it only states that the surviving
spouse is to have the usufruct with no further enlargement,
the court in Darby v Rozas 580 So2d 984 (La 3rd Cir 1991)
held that this is no different than the legal usufruct conferred
by law and will terminate upon remarriage. If the testator
wants the usufruct to be for life and to extend beyond
remarriage, that point should be made clear in the will.
The big exception to the above description is the
usufruct over consumable property, such as cash. The only
way to use cash is to spend it so, to that extent, the property
over which the usufruct exists can be destroyed. However,
at the end of the usufruct, the usufructuary owes an
accounting to the naked owner and owes a return of the
property over which the usufruct existed. In the case of the
usufruct terminating at death, the estate may owe a debt to
the naked owner for the value of the cash but if the estate
has no assets, the naked owner loses.
A usufruct over property can be established by
contract in which the owner would grant a usufruct over a
tract of property for a stated period of time. A usufruct is
created by law in favor of a surviving spouse over the
community property owned by the decedent, even though
the children of the decedent may have inherited the property
as naked owners. The usufruct can be given to another
person in a will even if it is in conflict with the legal
usufruct in favor of the surviving spouse.
Since the usufruct is a legal right granted by one
person to another, that right can be according to almost any
terms the parties agree to. For instance, it could be for a
stated term, covering only certain stated properties, it could
be set to terminate if certain conditions are met, such as
marriage of a child or remarriage of a spouse, it can be
granted to several people to share jointly, and it can be
given to one person for a period of time and to another after
some stated event occurs.
As it relates to corporate stock, the usufructuary has
the right to collect and spend the cash dividends and to vote
the shares of stock. Since stock dividends are only an
adjustment to the total number of shares, stock dividends
belong to the naked owner.
The most common form of usufruct is that held by a
surviving spouse after the decedent's death. If the decedent
died owning community property and he had not disposed of
it by will, then the surviving spouse has a legal usufruct
over the deceased spouse's share of community property
even though the children are considered to have inherited the
property and are the naked owners. Unless modified by
will, this usufruct conferred by law terminates upon the
death or remarriage of the surviving spouse.
In addition to the community property, the decedent
many times leaves a usufruct over his separate property in
favor of the surviving spouse.
The usufructuary is entitled to the income from the
property subject to the usufruct. This income is generally
referred to as fruits under Louisiana law; thus the term
usufruct relates to the right to use the fruits of the property.
The difference in fruits and usufruct as compared to the
naked owners and the principal is similar to the talking
about the fruits as being different from the tree. The
usufructuary does not own the tree but has the full and
unfettered right to gather the fruits from the tree.
A usufructuary may cut trees on the land and use
stones, sand and other materials from the land but only for
his own use or for the improvement of the land. However,
if the land is managed as timberland, then the usufructuary
may cut the trees and retain the proceeds for himself.
A usufructuary may be required to post a bond or
security in the amount of the property subject to the
usufruct. This requirement can be waived in the granting of
the usufruct and this requirement does not exist when the
usufruct is granted by law, as in the case of a surviving
spouse.
The usufructuary is obligated to make the normal and
necessary repairs whereas the naked owner is responsible for
extraordinary repairs. The usufructuary is, however,
responsible for any losses resulting from his fraud, default
or neglect and for the annual charges to the property such as
property taxes.
The naked owners may dispose of their ownership or
may mortgage the property but not in any manner that will
have an adverse affect on the usufructuary. The naked
owner can exercise several rights but none of them can
interfere in any way with the rights of the usufructuary.
A usufruct for a term terminates at the end of that
term. Otherwise, a usufruct terminates at the death of the
usufructuary.
Source: La Civil Code Articles 477 and 535 et seq
Right of Habitation
Sometimes a person can donate or leave just a right
of habitation to a person and not a full usufruct. A right of
habitation is a nontransferable real right of a natural person
to dwell in the house of another. The right cannot be
encumbered, sold, transferred, donated or transferred at
death. Habitation is a personal servitude, namely, a charge
on a property in favor or a person, akin to but more limited
than a usufruct. This is a good means of providing a
guaranteed right to a person's parent or family member that
insures they will have a place to stay.
The right of habitation is established and is
extinguished in the same manner as is the right of usufruct.
Since the right involves an immovable, its creation must be
written and recorded in the parish records. If created by
will, it must be in proper form for a will. Since the right
can only be established for a dwelling and as a place to live
for the recipient, the object of the right can only be a place
of dwelling.
The person who holds the right of habitation is
entitled to the exclusive use of the dwelling or the part
assigned to him and, provided that he resides therein, he
may receive friends, guests and boarders. He is obligated
to use the property as a prudent administrator and at the
expiration of his right to deliver the dwelling back to the
owner in the condition in which he received it, ordinary
wear and tear excepted.
The holder of the right of habitation is responsible
for the ordinary repairs to the dwelling, for the payment of
the taxes and for other annual charges as would be a
usufructuary. If he only holds a right to a part of the
dwelling, then he is responsible for these items in proportion
to his occupancy.
Unless the act creating the right of habitation states
to the contrary, the right terminates at the death of the
person to whom the right was granted.
Source: La CC Art 630-638
======================== WARNING =======================
AND DISCLAIMER
This information is provided for the reader's benefit in
becoming familiar with the legal matters discussed. Your
particular facts may be different from the points above.
You should not rely on the above data without consulting a
attorney to discuss the specific facts of your case
and the law of your state.
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If you live in Louisiana and want to talk about your situation, please
call me at:
Marvin E. Owen
Attorney-CPA
3036 Brakley Drive
Baton Rouge, La 70816
ph 225-292-0099
toll-free 1-888-292-0116
e-mail marvin@meocpa.com
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