A Civil Law Tradition
Art. 655. Natural drainage. An estate situated below is the servient estate and is bound to receive the surface waters that flow naturally from a dominant estate situated above unless an act of man has created the flow.
Art. 656. Obligations of the owners. The owner of the servient estate situated below may not do anything to prevent the flow of the water. The owner of the dominant estate situated above may not do anything to render the servitude more burdensome.
Art. 654. Kinds of predial servitudes. Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner.
Art. 729. Conventional alteration of legal or natural servitude. Legal and natural servitudes may be altered by agreement of the parties if the public interest is not affected adversely.
Art. 646. Predial servitude; definition. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners.
Art. 647. Benefit to dominant estate. There must be a benefit to the dominant estate. The benefit need not exist at the time the servitude is created; a possible convenience or a future advantage suffices to support a servitude. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate.
Art. 648. Contiguity or proximity of the estates. Neither contiguity nor proximity of the two estates is necessary for the existence . of a predial servitude. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other.
Art. 649. Nature; incorporeal immovable. A predial servitude is an incorporeal immovable.
Art. 650. Inseparability of servitude. A. A predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated, leased, or encumbered separately from the dominant estate.
B. The predial servitude continues as a charge on the servient estate when ownerÂship changes.
Art. 652. Indivisibility of servitude. A predial servitude is indivisible. An estate cannot have upon another estate part of a right of way, or of view, or of any other servitude, nor can an estate be charged with a part of a servitude. The use of a servitude may be limited to certain days or hours; when limited, it is still an entire right. A servitude is due to the whole of the dominant estate and to all parts of it; if this estate is divided, every acquirer of a part has the right of using the servitude in its entirety.
Art. 747. Division of dominant estate. If the dominant estate is divided, the servitude remains due to each part, provided that no additional burden is imposed on the servient estate. Th s, in case of a right of passage, all the owners are bound to exercise that right through the same place.
Art. 651. Obligations of the owner of the servient estate. The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. A servitude may not impose upon the owner of the servient estate or his successors the obligation to pay a fee or other charge on the occasion of an alienation, lease, or encumbrance of the servient estate.
Art. 748. Noninterference by the owner of servient estate. The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude. If the original location has become more burdensome for the owner of the servient estate, or if it prevents him from making useful improvements on his estate, he may provide another equally convenient location for the exercise of the servitude which the owner of the dominant estate is bound to accept. All expenses of relocation are borne by the owner of the servient estate.
Art. 639. Right of use. The personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment.
Art. 640. Content of the servitude. The right of use may confer only an advantage that may be established by a preÂdial servitude.
Art. 641. Persons having the servitude. A right of use may be established in favor of a natural person or a legal entity.
Art. 642. Extent of the servitude. A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title.
Art. 643. Transferable right. The right of use is transferable unless prohibited by law or contract.
Art. 644. Heritable right. A right of use is not extinguished at the death of the natural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract.
Art. 645. Regulation of the servitude. A right of use is regulated by application of the rules governing usufruct and predial servitudes to the extent that their application is compatible with the rules governing a right of use servitude.
Art. 630. Habitation. Habitation is the nontransferable real right of a natural person to dwell in the house of another.
Art. 631. Establishment and extinction. The right of habitation is established and extinguished in the same manner as the right of usufruct.
Art. 632. Regulation by title. The right of habitation is regulated by the title that establishes it. If the title is silent as to the extent of habitation, the right is regulated in accordance with Articles 633 through 635.
Art. 638. Duration of habitation. The right of habitation terminates at the death of the person having it unless a shorter period is stipulated.
Art. 633. Persons residing in the house. A person having the right of habitation may reside in the house with his family; although not married at the time the right was granted to him.
Art. 3506. General definitions of terms. Whenever the terms of law, employed in this Code, have not been particularly defined therein, they shall be understood as follows: 12. Family-Family in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another, and includes the servants of the family. It is also employed to signify all the relations who descend from a common root.
Art. 634. Extent of right of habitation. A person having the right of habitation is entitled to the exclusive use of the house or of the part assigned to him, and, provided that he resides therein, he may receive friends, guests, and boarders.
Art. 637. Nontransferable and nonheritable right. The right of habitation is neither transferable nor heritable. It may not be alienated, let, or encumbered.
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 usuÂfructuary 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 usuÂfructuary 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 usuÂfructuary. 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 usuÂfructuary 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.
Art. 533. Kinds of servitudes. There are two kinds of servitudes: personal servitudes and predial servitudes.
Art. 534. Personal servitude. A personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes:’usufruct, habitation, and rights of use.
Art. 646. Predial servitude; definition. A predial servitude is a charge on a servient estate for the benefit of a dominant estate. The two estates must belong to different owners.
Art. 733. Interpretation; benefit of dominant estate. When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.
Art. 734. Interpretation; convenience of a person. When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.
Art. 797. Ownership in indivision; definition. Ownership of the same thing by two or more persons is ownership in indivision. In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.
Art. 798. Right to fruits and products. Co-owners share the fruits and products of the thing held in indivision in proportion to their ownership. When fruits or products are produced by a co-owner, other co-owners are entitled to their shares of the fruits or products after deduction of the costs of production.
Art. 802. Right to me the thing. Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivision according to its destination, but he cannot prevent another co-owner from making such use of it. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner.
Art. 801. Use and management by agreement. The use and management of the thing held in indivision is determined by agreement of all the co-owners.
Art. 805. Disposition of undivided share. A co-owner may freely lease, alienate, or encumber his share of the thing held in indivision. The consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivision.
Art. 807. Right to partition; exclusion by agreement. No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act. Any co-owner has a right to demand. partition of a thing held in indivision. Partition may be excluded by agreement for up to fifteen years, or for such other period as provided in R.S. 9:1702 or other specific law.
Art. 808. Partition excluded. Partition of a thing held in indivision is excluded when its use is indispensable for the enjoyment of another thing owned by one or more of the co-owners.
R.S. 9:1702. Agreement not to partition by persons holding property in common. Persons holding property in common may agree that there shall not be a partition of the property held in common for a specific period of time, not to exceed fifteen years. However, persons holding in common a nuclear electric generating plant or unit, or the site of such plant or unit, located in this state may agree that such plant or unit or site shall not be partitioned for a period of time not to exceed ninety-nine years. Any agreement under the provisions of this Section shall be in writing and shall be valid irrespective of the provisions of Civil Code Article 807.
Art. 809. Judicial and extrajudicial partition. The mode of partition may be determined by agreement of all the co-owners. In the absence of such an agreement, a co-owner may demand judicial partition.
Art. 810. Partition in kind. The court shall decree partition in kind when the thing held in indivision is susceptible to division into as many lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the value of the property in the state of indivision.
Art. 811. Partition by licitation or by private sale. When the thing held in indivision is not susceptible to partition in kind, the court shall decree a partition by licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.
Art. 817. Imprescriptibility of action. The action for partition is imprescriptible.
Art. 814. Rescission of partition for lesion. An extrajudicial partition may be rescinded on account of lesion if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received.
Art. 3473. Prescription of ten years. Ownership and other real rights in immovables may be acquired by the prescription of ten years.
Art. 3486. Immovables; prescription of thirty years. Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.
Art. 526. Recognition of ownership; recovery of the thing. The owner of a thing is entitled to recover it from anyone who possesses or detains it without right and to obtain judgment recognizing his ownership and ordering delivery of the thing to him.
Art. 530. Presumption of ownership of movable. The possessor of a corporeal movable is presumed to be its owner. The previous possessor of a corporeal movable is presumed to have been its owner during the period of his possession. These presumptions do not avail against a previous possessor who was dispossessed as a result of loss or theft.
Art. 531. Proof of ownership of immovable. One who claims the ownership of an immovable against another in possession must prove that he has acquired ownership from a previous owner or by acquisitive prescription. If neither party is in possession, he need only prove a better title.
