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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