Personal Servitudes

Question 0

What is a consumable?

Answer 0

things that cannot normally be used without their substance being changed (money, food, merchandise, inventory)
The key is they are used on first use.

Question 1

What does the nature of right of usufruct hinge on?

Answer 1

Whether it is over a consumable or non consumable

Question 2

What is a nonconsumable

Answer 2

things that can be used without being altered, but natural deterioration okay (land, house, furniture, car)

Question 3

what rights does a usufructuary have over a non consumable

Answer 3

right to possess and derive utility, profits, advantage. Must preserve. Must use as prudent administrator. Right to fruits

Question 4

What is the special rule for trees and usufruct?

Answer 4

Ordinarily, usufruct of land does not include the right to cut down trees because they are generally not fruits. The usufructary may remove trees for his own use on the property.
When usufruct includes timberlands, the usufructuary may retain proceeds of timber operations so long as he manages the timberlands as a prudent administrator. Timberlands are capable of producing timber in paying quantities.

Question 5

What is the difference between timberland and a tree farm

Answer 5

timberland is land capable of producing timber in paying quantities, a tree farm is regularly managed and exploited for timber.

Question 6

Is a plan to cut timber proper management of property under the code

Answer 6

it depends on what expert opinion the court adopts. The code provides usufructuary of timberland is bound to manage as prudent administrator and may retain all proceeds of timber operations derived from proper management. Proper management is decided by trier of fact, who will likely use expert testimony.

Question 7

who is entitled to what portion of proceeds from sale of timber

Answer 7

proceeds of timber operations derived from proper management of timberlands belong to usufructuary. if they are not found to constitute prudent administration, proceeds to naked owner plus damages for failure to act as prudent administrator

Question 8

t or f:

the usufruct granted to surviving spouse terminates when spouse dies or remarries

Answer 8

true. if 890 usufruct. (false for all other usufructs)

Question 9

T or F
civil fruits are revenues derived from a thing by operation of law or by reason of juridical act, such as rentals, interest, etc.

Answer 9

true. (conversely, natural fruits are products of the earth or of animals)

Question 10

Define the term fruits and list two types of fruits referred to in the code

Answer 10

fruits are things produced by or derived from another thing without diminishing the substance of that thing. Fruits must be distinguished from products, which do diminish substance of a thing. there are two types of fruits: natural and civil. Natural fruits are products of earth or animals. Civil fruits are revenues derived from a thing either by operation of law or juridical act

Question 11

T or F

Standing timber is considered to be a movable when it belongs to a person other than the owner of the land

Answer 11

False. It is always immovable.

Question 12

T or F:

The naked owner may alienate or encumber property subject to a usufruct, but cannot thereby affect the usufruct.

Answer 12

True. Naked owner has abuses element.

Question 13

T or F:
A usufructuary may establish predial servitudes on property over which he has a usufruct, but the servitudes terminate when the usufruct ends

Answer 13

False. No right of abuses (alienation)

Question 14

Does usufructuary have right to lease property to someone?

Answer 14

usufructuary has right to enter into a lease of property, since any usufructuary may lease, alienate, or encumber his own right(s). However, any such contract ceases when the usufruct ends, unless usufructuary has expressly been granted right to dispose of nonconsumables. If he has been expressly granted power of disposition, he has the right to lease the thing for a term extending beyond termination of usufruct.

Question 15

Does usufructuary have right to donate

Answer 15

the right of usufructuary to dispose of nonconsumables does not include the right to donate unless that right has been expressly granted. Even if they can dispose of nonconsumable, he is obligated to pay naed owner at termination of usufruct the value of the thing at the time of donation.

Question 16

Does usufructuary have right to exclude naked owner from family home

Answer 16

usufructuary has right of possession, naked owner has element of abuses, so yes, may exclude. However if naked owner is also a co owner, there are rights of use in accordance with its destination, so if only a co owner, no right to exclude.

Question 17

Is usufructuary entitled to lease termination payment

Answer 17

Usufructuary of nonconsumable is entitled to fruits and revenues that accrue during usufruct. May not usually dispose of nonconsumables, but may lease or encumber his own right.
If usufruct terminated before lease termination, usufructuary is not entitled to payment bc no usufruct exists.
Otherwise, if active, need to know if termination payment was a fruit. It is a revenue derived from property that does not diminish substance, so likely a civil fruit.

Question 18

Is usufructuary entitled to reimbursement for construction?

Answer 18

usufructuary of nonconsumable has right to possess them and derive ustility, etc. as long as they preserve substance. He may make improvements and alterations at his own cost if naked owner gives consent in writing. Not entitled to reimbursements.

Question 19

T or F

a usufrutuary is responsible for ordinary repaires on property subject to usufruct

Answer 19

true

Question 20

Is usufruct entitled to reimbursement for replacing part of roof

Answer 20

Usufructuary is responsible for ordinary maintenance and repairs. Naked owner can compel usufructuary to make ordinary repairs, so if classified as such, no reimbursement.

The naked owner is responsible for extraordinary repairs, but cannot be compelled to make them. The usufructuary can make the repairs if he chooses and get compensation at end of usufruct. Reconstruction of the whole or substantial part of property is extraordinary, all others are ordinary.

Question 21

what are rights and obligations the usufructuary and naked owner have to each other with respect to rebuilding a building destroyed by tornado.

Answer 21

usufruct over nonconsumable terminates when permanently destroyed through accident, force majeure, or decay. So usufruct ended here. Neither NO or U was at fault, neither owes obligations to the other. Netierh has duty to rebuild and nonconsumable thing totally destroyed in this way. Naed owner has right to elect to restore, but not bound to do so.
Usufruct would be liable for losses if he fails to act as prudent administrator. he must exercise the care that a careful person would in the administration of his own affairs.

Question 22

What rights does absent person have against curator?

Answer 22

Absent person has rights to receive his property managed by curator upon his reappearance. Absent person considered presumed but not declared dead after 5 years. Curator is permitted to excercise the power of administration and disposition of absent persons property.
On return of absent person, curatorship terminates and curator is required to return his property. The curator is bound to account for his management and restore the property to formerly absent person.
absent person can recover net proceeds of things alienated and for diminution of value of things encumbered if he was declared dead.

Question 23

What can a curator do on behalf of absent person

Answer 23

exercise all functions with regard to absent persons property including disposition, but must see court approval.