property Flashcards
usufruct
what type of servitude is a usufruct
a personal servitude (creates a real right in favor of a person)
usufruct
how are ownership rights divided
a usufruct divides the usus and the fructus in favor of the usufructuary, while the naked owner maintains the abusus of the ownership
usufruct
how is a usufruct created
two ways –conventional and legal
usufruct
what do the rights of the usufructuary largely hinge upon
whether the usufruct is granted over a consumable or nonconsumable
usufruct
what is a consumable thing
something that is expended after use
usufruct
what is a nonconsumable thing
lasting, although perhaps gradually deteriorating; can be used multiple times
usufruct
what are the usufructuary’s rights to fruits
he/she is entitled to fruits derived during the usufruct and owes nothing for them
* natural fruits include those gathered during the usufruct
* civil fruits include those accrued during the usufruct
usufruct
what are the usufructuary’s rights with regards to selling the thing subject to the usufruct
while the usufructuary may not sell the thing subject to the usufruct (and neither can the naked owner), he is permitted to sell his right
usufruct
what is the usufructuary’s right generally to make improvements
no right to make improvements
usufruct
when can the usufruct make improvements
- if the usufructuary obtains written consent (no right to reimbursement, however; may have a right to set-off damages owed to N.O. for destruction/deterioration to the proprety)
- usufructuary can obtatin court approval –he must show, however, that a prudent administrator would make these improvements (must also provide notice to the N.O.)
usufruct
what is usufructuary responsible for regardless of whether he received consent
expenses
usufruct
what is the usufructuary entitled to for removal of improvements
- can remove but must restore the thing to its former condition
- cannot demand reimbursement for improvements not removed
usufruct
what’s the naked owner’s right for removals made without his consent
naked owner can demand demolition
usufruct
generally, what’s the rule with regards to disposing a nonconsumable
usufructuary may not dispose of a nonconsumable (there are exceptions, of course)
usufruct
what are the two exceptions for being able to dispose of a nonconsumable
- creator may expressly grant the right to dispose (must specifically provide for right to donate, however)
- usufructuary can dispose of corporeal movables that are gradually and substantially impaired by use, wear, or decay as long as the usy. acts as PA
usufruct
if the usufructuary disposes of a corporeal movable for less than its value, what happens at termination of the usufruct
the usy. owes the naked owner the difference
usufruct
what are the usufructuary’s duties generally
- inventory
- security
- prudent administrator
- ordinary maintenance and repairs (and extraordinary reapirs that require a reconstruction of the whole or substantial part of the property if they are the result of the usufructuary’s fault)
- annual/periodic charges
usufruct
what right does the naked owner have with regards to ordinary maintenance and repairs that the usufructuary must make
he can compel the usufructuary to make them
usufruct
what are the naked owner’s duties and rights
- dispose (of their N.O. right)
- establish real rights (no impairment of usy. interest)
- extraordinary repairs (cannot be compelled to do so) (if usy. makes these, usy. can obtain reimbursement)
- no interference with usy. enjoyment
- cannot make alterations to the property, but can restore damages and make repairs
usufruct
what are the causes of termination of the usufruct
- death of the usy. or the happening of any term or condition on whcih the usufruct was established (natural usufructuaries)
- dissolution or liquidation of the juridical person or after 30 years has passed (juridical usufructuaries)
- prescription (10 years of nonuse)
- confusion/express renunciation by usy.
- waste or abuse (nonconsumables)
- property subject to prior encumbrance
- total destruction (nonconsumables)
usufruct
how can a usufruct be terminated for waste or abuse
waste or abuse is a serious violation of the obligation to preserve the substance of the nonconsumable. this action must be judicially asserted; it is not automatic.
usufruct
what are the exceptions to a usufruct terminating for destruction of the thing
- usufruct will attach to tort proceeds (if destroyed by 3P fault)
- usufruct continues over insurance proceeds for destroyed property
- usufruct continues over excess proceeds after a mortgage creditor has been paid
- usufruct continues over money received for expropriation
usufruct
what are the effects of terminating a consumable usufruct
the usy. must pay the value that the consumable(s) had at the time of commencement of the usufruct or the usufructuary can choose to hand over things of the same quality and quantity
usufruct
what are the effects of terminating a nonconsumable usufruct
generally, the usufructuary must return the nonconsumable.
* if the nonconsumable is destroyed by the usufructuary’s fault, however, then they must pay the value they would otherwise have had at the time of termination
* for corporeal movables disposed of, usy. must pay the difference bewteen their value and the money received at disposition
