Written by: R. Jerome Andries Attorney at Law, Andries Law Firm, LLC
The term “Naked Owner” may sound like a strange concept at first, but it’s easy to understand. If you’ve recently inherited property in Louisiana, there’s a good chance you’ve been introduced to the term and may have some questions and concerns.
Ownership in Louisiana isn’t as cut and dry as you may think. You can own property in full ownership, you could be granted usufruct or you can be the naked owner. This article will discuss naked ownership in Louisiana and give a broad outline of what it means for your property ownership.
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What is Naked Ownership in Louisiana?
Naked ownership is defined in Louisiana Civil Code Article 478, “The right of ownership may be subject to a resolutory condition, and it may be burdened with a real right in favor of another person as allowed by law. The ownership of a thing burdened with a usufruct is designated as naked ownership.” You can’t discuss naked ownership without discussing usufruct, which is the “Use” of the property. Here’s an in-depth article that explains usufruct law in Louisiana.
What is Louisiana Usufruct?
Louisiana usufruct is a simple concept that is often misunderstood in Louisiana law. You see the term often when dealing with wills and successions.
Let’s say you inherited a piece of property when your father died. He left a surviving spouse and gave your step-mother “Usufruct” over his portion of the community property. While she may have “Use” of the property, you are the naked owner because he did not give it to her in full ownership. She has rights to the property and so do you. Technically, you both own the property together, but in different ways. If the usufruct he granted to her was for a specific term, then you will receive the property in full ownership when that time frame passes. If she has a lifetime usufruct, then you will receive the full ownership and use of the property when she dies. Her children will not inherit your father’s portion if she only has the usufruct over the property. The property will re-enter his lineage when she passes.
Can the Naked Owner Encumber Property?
The naked owner has obligations to the usufruct. As we know, the usufruct has “Use” of the property and the right to enjoy the property. The naked owner may dispose of the naked ownership, but cannot affect the usufruct. This means the naked owner can sell his or her ownership, but cannot do anything that will cause the usufruct to lose their rights in the property. The naked owner must allow the usufruct to enjoy the use of the property for the duration of the usufruct.
Louisiana Civil Code Article 604 tells us that, “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.”
In short, the naked owner can sell their rights to the property or establish servitudes, however, they must not interfere with the usufructuary’s enjoyment of the property. This can be a complex legal issue and it is recommended that you speak with an estate attorney licensed in Louisiana to ensure your rights as the naked owner are protected.
Further, the naked owner must not do anything that would interfere with the rights of the usufructuary according to La. C.C. Art. 605. This means that even though the naked owner is an owner of the property, he or she cannot impede the usufructuary’s rights to the property. This also means that the naked owner is not allowed to alter or improve the property subject to the usufruct. However, the naked owner does have the right to restore the property in question and to make what would be considered “Extraordinary repairs” when necessary. These repairs must be made quickly and in a manner that is the causes the least amount of inconvenience for the usufructuary.
Can a Naked Owner Sell Property?
Yes, a naked owner can sell their ownership of the property, but there are conditions. The naked owner must not interfere with the usufructuary’s use of the property. While the naked owner can sell their ownership interest, the usufruct follows the property. It may be difficult to sell property that has a usufruct attached to it, especially if it is for life.
Can Usufructuary Sell Property in Louisiana?
To answer this question, we must look at Civil Code Article 616. That article states that the usufructuary and the naked owner or owners can agree to sell property. The usufructuary may also have the right to sell the property in question. However, the code also states that the usufruct will terminate when property is sold, but attaches to the money from the sale of the property. The naked owner and usufructuary can agree that the usufruct will not attach to the money if they wish.
Keep in mind also that any taxes incurred from selling the property subject to usufruct will be paid from proceeds of the sale and will be subtracted from the amount due at termination of usufruct.
Issues with Naked Ownership
As I’m sure you have already figured out, there can be quite a few problems with a naked ownership. First, you don’t fully own the property. You may not even be able to use the property until the usufruct terminates. There may not be much you can actually do with the property you have inherited. Second, while you can dispose of the naked ownership, you can’t do anything that would interfere with the usufructuary’s enjoyment or use of the property. You can’t do anything that would impair the usufructuary’s rights. Lastly, you may end up owning property with someone you may not necessarily enjoy.
How Can a Usufruct be Terminated?
In some cases, the naked owner can actually terminate the usufruct. According to Louisiana Civil Code Article 623, “The usufruct may be terminated by the naked owner if the usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.” This type of issue would require a court hearing and evidence that the usufructuary is not fulfilling their duties as a prudent usufructuary. You would want to seek out an attorney to help you with the court process.
Usufruct Termination by Marriage
A usufruct that is received by operation of law will terminate upon remarriage or death, whichever comes first. In our previous example, if your step-mother remarries and wasn’t granted a lifetime usufruct, then the property reverts back to you in full ownership. You will then own all property rights and won’t have to share any longer. If, in this case, your step-mother was granted a lifetime usufruct, then it doesn’t matter if she remarries, you will have to wait until she dies in order to receive the property in full ownership.
Can a Naked Owner “Buy Out” the Usufructuary?
Buying out the property ownership of the usufructuary is always an option – if they agree. They can donate their ownership in the property to you or you can purchase it from them. You should consult with an attorney that specializes in property transfers before attempting it on your own.
Naked ownership and usufruct in Louisiana can be a complex legal issue and you should speak with an attorney with any questions you may have.
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Attorney R. Jerome Andries
Disclaimer: This blog article does not intend to provide legal advice. You must speak with an attorney for legal advice. Nothing on this website is to be taken as legal advice.