property

Question 1

usufruct

what type of servitude is a usufruct

Answer 1

a personal servitude (creates a real right in favor of a person)

Question 2

usufruct

how are ownership rights divided

Answer 2

a usufruct divides the usus and the fructus in favor of the usufructuary, while the naked owner maintains the abusus of the ownership

Question 3

usufruct

how is a usufruct created

Answer 3

two ways –conventional and legal

Question 4

usufruct

what do the rights of the usufructuary largely hinge upon

Answer 4

whether the usufruct is granted over a consumable or nonconsumable

Question 5

usufruct

what is a consumable thing

Answer 5

something that is expended after use

Question 6

usufruct

what is a nonconsumable thing

Answer 6

lasting, although perhaps gradually deteriorating; can be used multiple times

Question 7

usufruct

what are the usufructuary’s rights to fruits

Answer 7

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

Question 8

usufruct

what are the usufructuary’s rights with regards to selling the thing subject to the usufruct

Answer 8

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

Question 9

usufruct

what is the usufructuary’s right generally to make improvements

Answer 9

no right to make improvements

Question 10

usufruct

when can the usufruct make improvements

Answer 10

1. 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)
2. 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.)

Question 11

usufruct

what is usufructuary responsible for regardless of whether he received consent

Answer 11

expenses

Question 12

usufruct

what is the usufructuary entitled to for removal of improvements

Answer 12

• can remove but must restore the thing to its former condition
• cannot demand reimbursement for improvements not removed

Question 13

usufruct

what’s the naked owner’s right for removals made without his consent

Answer 13

naked owner can demand demolition

Question 14

usufruct

generally, what’s the rule with regards to disposing a nonconsumable

Answer 14

usufructuary may not dispose of a nonconsumable (there are exceptions, of course)

Question 15

usufruct

what are the two exceptions for being able to dispose of a nonconsumable

Answer 15

1. creator may expressly grant the right to dispose (must specifically provide for right to donate, however)
2. 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

Question 16

usufruct

if the usufructuary disposes of a corporeal movable for less than its value, what happens at termination of the usufruct

Answer 16

the usy. owes the naked owner the difference

Question 17

usufruct

what are the usufructuary’s duties generally

Answer 17

1. inventory
2. security
3. prudent administrator
4. 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)
5. annual/periodic charges

Question 18

usufruct

what right does the naked owner have with regards to ordinary maintenance and repairs that the usufructuary must make

Answer 18

he can compel the usufructuary to make them

Question 19

usufruct

what are the naked owner’s duties and rights

Answer 19

1. dispose (of their N.O. right)
2. establish real rights (no impairment of usy. interest)
3. extraordinary repairs (cannot be compelled to do so) (if usy. makes these, usy. can obtain reimbursement)
4. no interference with usy. enjoyment
5. cannot make alterations to the property, but can restore damages and make repairs

Question 20

usufruct

what are the causes of termination of the usufruct

Answer 20

1. death of the usy. or the happening of any term or condition on whcih the usufruct was established (natural usufructuaries)
2. dissolution or liquidation of the juridical person or after 30 years has passed (juridical usufructuaries)
3. prescription (10 years of nonuse)
4. confusion/express renunciation by usy.
5. waste or abuse (nonconsumables)
6. property subject to prior encumbrance
7. total destruction (nonconsumables)

Question 21

usufruct

how can a usufruct be terminated for waste or abuse

Answer 21

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.

Question 22

usufruct

what are the exceptions to a usufruct terminating for destruction of the thing

Answer 22

1. usufruct will attach to tort proceeds (if destroyed by 3P fault)
2. usufruct continues over insurance proceeds for destroyed property
3. usufruct continues over excess proceeds after a mortgage creditor has been paid
4. usufruct continues over money received for expropriation

Question 23

usufruct

what are the effects of terminating a consumable usufruct

Answer 23

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

Question 24

usufruct

what are the effects of terminating a nonconsumable usufruct

Answer 24

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