LOUISIANA CIVIL LAW PROPERTY
Professor Trahan
Course Outline (cont’d): 17
...
II.
III.
IV.
IV.
Things
Possession
Modes of acquiring real rights based on possession
Ownership
A. In general
...
E.
Dismemberments of ownership
1. Servitudes
a. Predial servitudes
...
b.
Personal servitudes
1) Right of use
a) Definition
CC art. art. 639.
b)
Distinctions
(1) Usufruct
CC art. 639 cmt. (b); CC art. 640.
(2) Predial servitude
CC arts. 731-34. Read those articles carefully; then read Trahan, Supp, 142-144 & 149.
2) Usufruct
a) Definition
CC art. 535; CC art. 476 cmt. (b); CC arts. 607 & 608.
b) Varieties
CC arts. 538-539.
c) Acquisition
CC art. 544 & cmt. (c).
(1) By juridical act
(a) Contractual & testamentary freedom
CC art. 545 & cmt. (b).
CC arts. 546 & 548.
(b) Contractual & testamentary interpretation
CC art. 609 & cmt. (c).
CC art. 546.
(2) By operation of law
(a) Spousal usufruct
CC arts. 888, 890.
(b) Marital portion usufruct
Skipped.
(c) Parental usufruct
Read CC arts. 223 & 226.
(3) By acquisitive prescription
CC art. 544 cmt. (c).
d) Partition
1) Relative: partition of usufruct or naked ownership
a) Partition of usufruct
Skipped.
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b)
Partition of naked ownership
Skipped.
2) Absolute: partition of the burdened thing
Can a thing burdened with a usufruct where either the usufruct or the naked ownership is held by
several persons in indivision itself be partitioned? Read CC art. 543/
e) Rights & obligations of the usufructuary
1) Rights
CC arts. 550 & 557.
a) Fruits
(1) Definition
(2) Allocation
(a) Natural fruits
Skipped.
(b) Civil fruits
Skipped.
b) Use
CC art. 539.
(1) Limitations on use
(a) Duty to act as prudent administrator
(b) Restriction on improvements
CC art. 558.
(c) Restriction on changes in destination
CC art. 558 & cmts.
(2) Uses of special interest
(a) Lease
Skipped.
(b) Encumbrance
Can the usufructuary mortgage the burdened thing? If he can’t do that, what can he mortgage?
What, precisely, does the mortgagee get? When does such a mortgage end? See CC art. 567 & cmt. (b).
2) Duties
a) Security
CC arts. 571 & 572.
b) Repairs
CC arts. 577-581.
c) Charges
CC arts. 584 & 585.
d) Prudent administrator
The usufructuary of a perfect usufruct, we have seen, has the duty to use the thing as a "prudent
administrator." What, exactly, does that mean? See CC arts. 576, 597, 598.
f) Rights & obligations of the naked owner
Can the naked owner dispose of the burdened thing juridically, i.e., by sale, exchange, or donation,
or encumber it. e.g., by mortgage? See CC art. 603. What happens to the usufruct? See id.
Can the naked owner, like the usufructuary, make improvements or alterations to the burdened
thing? Why or why not? See CC art. 606.
Can the naked owner make extraordinary repairs? Why or why not? See CC art. 606 & cmt. (b).
Can the naked owner grant servitudes over the burdened thing? Why or why not? See CC arts.604
& 710.
Can the naked owner of a tract of land grant a mineral servitude and/or lease over the land,
notwithstanding that it may infringe on the usufructuary's rights? Why or why not? See Mineral Code
arts. 195 & 196 [Yiannopoulos, Text, 527].
g) Termination
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(1) Causes of termination
(a) Death of the usufructuary
CC arts. 607 & 608.
(b) Destruction of the burdened thing
CC arts. 613-615, 617.
(b) Waste or abuse
CC arts. 623-624.
(c)
Forced sale of the burdened thing
CC arts. 615-616.
(2) Consequences of termination
(a) Usufruct of nonconsumables
CC art. 628.
CC art. 629.
3)
Habitation
Skipped.
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