by Branagan Mabry

I.               INTRODUCTION

In its 2021 decision, In re Succession of Johnson, the Louisiana Supreme Court had the opportunity to clearly define what actions constitute “use” in the context of acquisitive prescription. While the Court missed this opportunity, it did address somewhat related issues. The court examined the termination of usufruct due to the ten-year prescriptive period of nonuse set forth in La. Civ. Code art. 621 (“Article 621”).[1] The Court addressed two fundamental issues: (1) whether a lifetime usufruct may prescribe due to nonuse of ten years and (2) whether the subject usufruct had prescribed due to nonuse of ten years.[2] Through thorough statutory analysis, the Court definitively established that a lifetime usufruct may terminate due to nonuse pursuant to Article 621.[3] By analyzing the relevant Civil Code articles, the limited jurisprudence, Planiol’s Treatise on the Civil Law, and the facts of the case, the Court held that the subject usufruct had not prescribed due to nonuse.[4]

While the Court made clear that a lifetime usufruct may prescribe due to nonuse, Johnson shows that confusion remains regarding what “use” of a usufruct is.[5] The majority stated that some of the subject usufructuary’s acts constituted “use” but left her other acts untouched,[6]  leaving ambiguity surrounding the question of when an act becomes “use.” The concurrence agreed that “one or more” of the subject usufructuary’s acts constituted “use” but did not state which act(s) rose to the level of “use.”[7] The concurrence in part asserted that, during her time as usufructuary, the subject usufructuary never “used” the subject property.[8] The disparity between the majority, the concurrence, and the concurrence in part, and the ambiguity of the majority highlights that there is a fundamental gap in the Louisiana Civil Code articles pertaining to what is “use” of a usufruct and how the same relates to termination of usufruct due to nonuse.

Section II of this Casenote details the facts of Johnson, its procedural history, the parties’ arguments, and the Louisiana Supreme Court’s ruling on the presented issues. Section III lays out the legal background, providing insight into the relevant Civil Code articles and discussion on how the law of termination of usufruct could be improved through a modest recodification that considers the law of predial servitude termination. Section IV presents the Louisiana Supreme Court’s analysis in its decision. Section V examines how Johnson affects the interpretation of termination of usufruct due to nonuse and the effect it will have on future litigation. Finally, Section VI proposes a change to Article 621 of the Civil Code.

II.             FACTS AND HOLDING

This section details the facts underlying Johnson, describes the procedural history leading to the Louisiana Supreme Court’s grant of certiorari, explains the parties’ arguments, and presents the Court’s holding.

A.            Factual Background

Johnson arose from a family conflict between Beverly Edwin (“Ms. Edwin”) and the children of her former husband, Robert Johnson (“Mr. Johnson”), surrounding the “use” of immovable property located at 30192 Church Street, Walker, Louisiana (the “Property”).[9] Prior to Mr. Johnson and Ms. Edwin’s marriage in 1984, Mr. Johnson acquired an ownership interest in the Property,[10] making it his separate property. Mr. Johnson fathered eleven children before his marriage to Beverly Edwin and, together, they had three children during their marriage.[11] On June 7, 1995, Mr. Johnson granted Ms. Edwin a usufruct over the Property.[12] The “Affidavit of Usufruct” signed by Mr. Johnson provided that Ms. Edwin’s usufruct was “for the remainder of her life even if she remarries.”[13] Mr. Johnson recorded this juridical act in the conveyance records of Livingston Parish on June 14, 1995.[14] “During their marriage, Mr. Johnson and Ms. Edwin lived in a house on the [P]roperty.”[15] Around 2002 or 2003, Mr. Johnson and Ms. Edwin separated, and the couple legally divorced in 2006.[16]

Following the couple’s separation, Ms. Edwin moved off the Property, while Mr. Johnson continued to live there.[17] Thereafter, Ms. Edwin engaged in a “host of acts” on the Property.[18] On August 13, 2010, Mr. Johnson died intestate, leaving his fourteen children as naked owners of the Property with Ms. Edwin remaining as usufructuary.[19] Following Mr. Johnson’s death, their son remained on the Property, and Ms. Edwin granted permission to their daughter, Megan, to  live on the Property.[20]

Conflict soon arose when one of Mr. Johnson’s daughters from his prior marriage, Lorie Parker, moved onto the Property, and shortly thereafter began moving cars and trailers onto the Property.[21] Between 2010 and 2013, Ms. Edwin made numerous attempts to access the Property in preparation for Megan’s move, which caused conflict with Ms. Parker.[22] As tension grew between Ms. Edwin and Ms. Parker, Ms. Edwin sought to “enforce her rights as usufructuary.”[23] On June 3, 2014, Ms. Edwin filed a petition and was appointed administratrix of Mr. Johnson’s succession by the trial court.[24] However, on September 18, 2014, the trial court appointed Lorie Parker, Aveis Parker, and Robert C. Johnson, Jr. (“the co-administrators”), three of Mr. Johnson’s fourteen children, as co-administrators and removed Ms. Edwin as administratrix.[25] Around this same time, Ms. Edwin noticed that wiring had been destroyed and stolen from the Property, and  accordingly, she began to save money for repairs;[26] however, by 2017, the Property had deteriorated.[27] The city sent a letter to Ms. Edwin, which stated that the condition of the Property violated a city ordinance and requesting that she clean the Property.[28] As a result, Ms. Edwin had the Property cleaned by hired help.[29]

B.             Procedural History

As a result of the family conflict, Ms. Edwin filed a “Motion to Enforce Conventional Usufruct and Spousal Reimbursement Claim” on September 26, 2018.[30] Ms. Edwin alleged that, due to the co-administrators’ absence from and neglect of the Property, its value was deprecating, and it needed repair.[31] Ms. Edwin further alleged that, as a result of the co-administrators’ neglect, she spent a total of $21,600.00 in her efforts “to clean, maintain, and improve” the Property and asserted that the estate of Mr. Johnson was liable for re-compensating her the said sum.[32]

The co-administrators countered Ms. Edwin’s motion by filing a peremptory exception of prescription.[33] The co-administrators argued that Ms. Edwin’s usufruct had prescribed due to the ten-year prescriptive period of nonuse pursuant to Article 621.[34] In opposition, Ms. Edwin argued that a lifetime usufruct is not susceptible to prescription of nonuse.[35] In the alternative, Ms. Edwin contended that, even if a lifetime usufruct is susceptible to prescription of nonuse, she had “used” the Property within the ten-year prescriptive period, thereby interrupting prescription.[36]

The trial court held two hearings, the first to determine whether a lifetime usufruct may prescribe pursuant to Article 621 and the second, an evidentiary hearing, to determine if Ms. Edwin’s usufruct had prescribed due to her alleged nonuse.[37] In the first hearing, the trial court determined that a lifetime usufruct is susceptible to prescription of nonuse.[38] Following the second hearing, and after finding that Ms. Edwin’s usufruct had been extinguished due to nonuse, the trial court rendered judgment in favor of the co-administrators and sustained their exception of prescription.[39]

Thereafter, Ms. Edwin appealed, and the court of appeal affirmed the trial court’s judgment.[40] Subsequently, Ms. Edwin filed a writ application with the Louisiana Supreme Court.[41] Therein, she first reasserted that a lifetime usufruct is not susceptible to the ten-year prescriptive period set forth in Article 621.[42] Second, she contended that the lower courts erred in finding that her “activities” on the Property did not constitute “use” so as to interrupt prescription of nonuse.[43]   The Louisiana Supreme Court granted certiorari to “examine” the aforementioned issues.[44]

C.             Parties’ Briefs Before the Court and the Court’s Holding

In her brief on the merits, Ms. Edwin argued both substantive issues before the Court.[45] As for the first issue – whether a lifetime usufruct may terminate due to nonuse – Ms. Edwin relied on the accepted rule of statutory interpretation that a more specific article on a given matter prevails as an exception to a more general article.[46] Ms. Edwin argued that Article 621 is a more general article, while La. Civil Code arts. 545 and 610 (“Articles 545 and 610”) apply more specifically to a usufruct granted for a term of the life of the usufructuary[47]; thus, Ms. Edwin asserted that Articles 545 and 610 should prevail as an exception to Article 621.[48]

Ms. Edwin then turned to her alternative argument: If a lifetime usufruct may terminate due to nonuse, Ms. Edwin argued that she had exercised her rights as usufructuary and therefore interrupted the accrual of the prescriptive period.[49] She contended that the limited Louisiana cases  addressing the issue of what constitutes a usufructuary’s “use” of a property, have interpreted “use” broadly, including instances of mere presence and working at the property subject to usufruct.[50] Thus, Ms. Edwin contended that each time she went to the Property to visit or to maintain the Property, she “used” the Property and so interrupted prescription.[51] Furthermore, Ms. Edwin argued that her son’s “use” of the Property, as naked owner, with her permission constituted “use” of the Property in her name.[52]

In response, the co-administrators filed a brief with the Court in opposition.[53] Countering Ms. Edwin’s contention that a lifetime usufruct is not susceptible to prescription of nonuse, the co-administrators argued that Articles 610 and 621 are not contradictory because the language in

Article 610 does not state that a usufruct granted for a term may be extinguished exclusively upon expiration of the term and the language of Article 621 provides that a ten-year term is applicable to all usufructs when the usufruct is not “used” within ten years.[54]

Moving to the second issue, the co-administrators, assuming a lifetime usufruct is suspecptible to prescription of nonuse, argued that Ms. Edwin ceased her “use” of the Property in 2006 after she stopped storing her school supplies on the Property.[55] Furthermore, the co-administrators argued that it did not constitute “use” “as defined by Article 621” when Ms. Edwin allowed their son to live on the Property with Mr. Johnson.[56] Notably, the co-administrators contended that because Mr. Johnson and Ms. Edwin’s son did not pay rent or maintain the Property, their son’s occupancy of the Property did not constitute “use” on Ms. Edwin’s behalf because she obtained no benefit.[57]

The Louisiana Supreme Court held that a lifetime usufruct may prescribe due to nonuse of ten years, but Ms. Edwin’s usufruct had not done so.[58]

III.           LEGAL BACKGROUND

To delve into the Louisiana Supreme Court’s insight into termination of usufruct by prescription of nonuse, we must first look at what a usufruct is and the broad range of rights a usufructuary has. An examination of usufruct requires a look at ownership. The owner of a thing has “direct, immediate, and exclusive authority” over the thing.[59] Furthermore, an owner of a thing has three fundamental rights: to use, to enjoy, and to dispose of the thing.[60] Importantly, ownership cannot terminate due to nonuse.[61]

Ownership can be dismembered, however.[62] One of the ways ownership may be dismembered is through usufruct.[63] With a usufruct, the rights of ownership are divided between the usufructuary and the naked owner.[64]  The usufructuary is given the right to “use and enjoy” the thing subject to usufruct, while the naked owner retains the right to dispose of the thing.[65] As such, the usufructuary is given the “direct and immediate authority over the thing [subject to usufruct].”[66]

By definition, all usufructs must come to an end, [67] and unless stipulated otherwise,[68] a usufruct will expire when the usufructuary dies.[69] Unlike ownership, a usufruct is susceptible to prescription of nonuse of ten years.[70] Thus, if a usufructuary fails to “use or enjoy” the thing subject to usufruct for ten years, the usufruct will terminate causing the usufructuary to lose all rights in the thing.[71]

A.   The Scope of Use

In Louisiana, there is much confusion and debate on the topic of what constitutes “use” so as to interrupt[72] prescription of nonuse.[73] In order to interrupt prescription of nonuse, the usufructuary or “any other person acting in [her] name” must exercise her right of usufruct within the ten year prescriptive period.[74] In the context of usufructs over nonconsumable things,[75] the right of usufruct includes the right “to possess [the thing] and to derive the utility, profits, and advantages that [the thing] may produce…”[76]

In Theriot v. Terrebonne, the court provided insight into which acts may constitute “use” of a property subject to usufruct.[77] The court established that planting and utilizing a garden, docking and operating a boat, mowing the grass and generally maintaining the property, as well as using the property for storage, all constitute “use” of the property subject to the usufruct.[78] This low threshold, applied by the court in Theriot, of what constitutes “use” supports the Louisiana Supreme Court’s contention that a conventional usufruct is a “broad and extensive grant of use and enjoyment” of a property subject to usufruct.[79]

The Theriot court’s hesitancy to hold that the usufruct had terminated in favor of the naked owners shows how powerful a usufructuary’s rights are.[80] In fact, with a usufruct over consumables,[81] “the usufructuary becomes owner of them.”[82] This is because, with a usufruct over consumables, the usufructuary gains the third fundamental right of ownership: to dispose of the thing.[83] If expressly granted, this right may also be conferred unto usufructuaries of nonconsumables.[84] The right of disposition over both consumables and nonconsumables is, however, separated from ownership by the fact that the usufructuary must, at the termination of the usufruct, account to the naked owner the value of the thing.[85]

B.    The Law of Predial Servitudes and Its Relation to Use in the Context of Usufruct

The laws of usufruct “are governed by the laws of predial servitudes[86] to the extent that they do not conflict.”[87] La. Civ. Code art. 759 (“Article 759”) provides, “[a] partial use of the servitude constitutes use of the whole.”[88] With regard to Article 759, the Louisiana Civil Law Treatise notes that “the use of the servitude in any manner interrupts the prescription of nonuse as to all manners of use.”[89] Therefore, a single, small act of the usufructuary regarding the thing subject to usufruct in the span of ten years may be sufficient to interrupt prescription of nonuse. The concept of an act too trivial to be considered “use” of a usufruct could be characterized as a “mere gesture.”[90] Thus, if a usufructuary went onto the property subject to usufruct once within a ten-year period solely to interrupt prescription, a court would likely find that act to be a “mere gesture” and insufficient to interrupt prescription of nonuse.

            Ultimately, given that a usufructuary’s rights are largely as a broad as a full owner’s rights[91] and that any manner of “use” of the thing subject to usufruct is sufficient to interrupt prescription,[92] practically any act of a usufructuary on the property subject to usufruct is sufficient to constitute “use” so as to interrupt prescription of nonuse. This is so, unless that act is done solely to interrupt the accrual of the prescriptive period.[93] In such a case, the prescriptive period will continue to run.[94]

IV.          COURT’S DECISION

Turning back to Johnson, the Louisiana Supreme Court granted certiorari in order to address two substantive issues: (1) whether a usufruct granted for life is susceptible to the ten-year prescriptive period of nonuse pursuant to Article 621 and (2) whether Ms. Edwin’s usufruct had extinguished due to nonuse of ten years.[95] The Court unanimously and definitively answered the first issue through thorough statutory interpretation but was divided on the second issue.[96]

A.             Issue 1: Whether a Lifetime Usufruct is Subject to the Ten-Year Prescription of Nonuse Set Forth in Article 621 

To answer the first question, the Court dismantled Ms. Edwin’s argument to show its flaws.[97] The Court noted that Article 610[98] contains no language by which it would be exempt from the prescriptive period set forth by Article 621 and, likewise, that “Article 621[99] contains no language that would preclude its application to Article 610.”[100] To expand on this contention, the Court asserted that “[t]he addition of the word ‘only’ [to Article 610] would be redundant and would not otherwise add anything meaningful to the article.”[101] Thus, the Court’s reasoning seems to suggest that all usufructs are subject to the condition that a usufruct must be “used” by the usufructuary within the ten year prescriptive period, making Articles 610 and 621 non-contradictory.[102] Additionally, the Court cited La. Civ. Code art. 607[103] (“Article 607”) and La. Civ. Code art. 535[104] (“Article 535”) to establish that all usufructs, by default, are of limited duration and terminate at the death of the usufructuary, meaning that  all usufructs, unless stipulated to end earlier, are established for a term of the life of the usufructuary.[105] The Court further noted that it would be illogical “to apply the prescription of nonuse to a usufruct term that is for life by operation of law, but not apply it when the term is for life by express stipulation of the parties.”[106] Therefore, all usufructs are subject to prescription of nonuse pursuant to Article 621 because all usufructs are established for a term and subject to a condition. The Court put the nail in the coffin on Ms. Edwin’s argument by noting that if the Court found that a lifetime usufruct could not prescribe due to nonuse, a usufructuary could “abandon or ignore the property for a lifetime, a result inconsistent with the civil law objective of keeping property in commerce.”[107]

Having established that a lifetime usufruct may prescribe due to nonuse of ten years, the Court then turned to the second issue.[108]

B.             Issue 2: Whether the Subject Usufruct had Terminated Due to Nonuse of Ten Years

The Court first noted that the conventional usufruct in Ms. Edwin’s favor did not “limit or otherwise alter” her rights as a usufructuary under the Civil Code and thus, “the provisions of the Civil Code dictated what ‘use’ [was] sufficient to preclude prescription for nonuse.”[109] Next, the Court set out to determine what  actions are sufficient to constitute “use,” so as to interrupt the accrual of the nonuse prescriptive period of ten years.[110] Because a usufruct “includes two of the three fundamental elements of ownership: use and enjoyment,” the Court stated that “a usufruct is the most extensive of the three personal servitudes referenced in the Civil Code.”[111] The Court differentiated the right of usufruct from the right of habitation by noting that “use” of a usufruct is not limited to the “right to use and inhabit the house located on the property.”[112] A usufructuary has broader rights, and is permitted to “use and enjoy[]” the property.[113]

The Court asserted that the lower courts erroneously limited Ms. Edwin’s usufruct to a grant of habitation by finding that her “use” ended when she stopped storing her school supplies on the Property.[114] Due to the legal error of the lower courts in failing to assess Ms. Edwin’s “use and enjoyment” of the Property, the Court found that a de novo review[115] was necessary, thereby taking on the role as the finder of fact.

Before delving into the facts of the case, the Court labeled Ms. Edwin’s activities on the Property as “acts” as opposed to “uses,” to make clear that not all of Ms. Edwin’s “acts” were in fact “uses” of the Property.[116] Notably, the Court did not label Ms. Edwin’s acts of attending family gatherings on the Property as “uses.”[117] However, the Court left open the possibility that more of her acts may have constituted “use” by introducing the aforementioned acts with the word “including.”[118]

Ultimately, the crux of the Court’s analysis revolved around its application of Article 621 and the holding of Theriot to the facts of this case. Critically, the Court quoted Theriot, stating, “a naked owner can never enter into enjoyment of the use of the property until after the extinction of the usufruct.”[119] Thus, the Court concluded that because a naked owner cannot enjoy the property on his own behalf, it is implied a naked owner’s “use” is on the usufructuary’s behalf, so long as the usufructuary does not object to the naked owner’s occupancy of the property.”[120]

With this established, the Court found that Ms. Edwin’s usufruct had not prescribed due to nonuse because she allowed Mr. Johnson to live on the Property, which was evidenced by the “familial relationship” she maintained with Mr. Johnson.[121] Additionally, the Court noted that in allowing her son to live on the Property, his “use” was done in Ms. Edwin’s name.[122]

C.             The Concurrence

In his concurrence,  Judge Crichton provided a much clearer explanation. Because the naked owner used the Property, it was implied that his “use” of the Property was done in Ms. Edwin’s name.[123] Thus, Mr. Johnson’s “use” was done in Ms. Edwin’s name and interrupted the accrual of the nonuse prescriptive period.[124]

Based on the principle that “the Court should refrain from embracing arguments that are unnecessary to deciding the case before [it],” Judge Crichton asserted that it was unnecessary to address each of Ms. Edwin’s individual acts on the Property,[125] noting that “any partial use of the property constitutes use of the whole.”[126] Therefore, any act of “use” that Ms. Edwin engaged in on the Property would have sufficed to interrupt prescription.[127]

D.            The Concurrence in Part

 In his concurrence in part, Judge McCallum agreed with the majority, the concurrence, and the lower courts, that a lifetime usufruct is subject to the prescription of nonuse of ten years pursuant to “clear and unambiguous” language of Article 621.[128] However, Judge McCallum  stated that “it [would be] difficult to envision a set of facts, as determined and detailed by the trial judge, that would be more appropriate for a determination of nonuse.”[129]

Judge McCallum reasoned that because the Property had deteriorated to such a degree that the City issued a letter outlining the violation of relevant ordinances, Ms. Edwin was not “using” the Property.[130] Notably,  Judge McCallum’s concurrence in part asserted that when Ms. Edwin’s son lived on the Property with Mr. Johnson, their son’s “use” of the Property established that Mr. Johnson had “use and possession” of the Property, not Ms. Edwin.[131] Ultimately, Judge McCallum concluded that a usufructuary must have “authority” over a property subject to usufruct in order to “use” the property.[132]

V.             ANALYSIS

While Johnson makes clear that a lifetime usufruct is susceptible to prescription of nonuse, the question of what may constitute a usufructuary’s “use and enjoyment” of a property subject to a usufruct remains unclear. Because it would have provided a simpler resolution to the issue of whether Ms. Edwin’s usufruct had terminated due to nonuse, the Court should have stated that because the naked owner lived in the usufructuary’s name on the Property until his death in 2010, and because the usufructuary asserted her rights as usufructuary by filing a motion to enforce her usufruct in 2018, the subject usufruct had not prescribed due to nonuse of ten years. However, the majority made a point to clear up some of the confusion surrounding what constitutes “use” of a usufruct when it listed which of Ms. Edwin’s acts on the Property, in fact, constituted “use.”[133]

The majority declined to state whether some of Ms. Edwin’s acts constituted “use,” specifically, when Ms. Edwin attended family gatherings on the Property.[134] In failing to establish whether an act such as attending a gathering on a property subject to usufruct rises to the level of “use,” the court left open the question of at what point an act can be considered “use.” Therefore, future litigants seeking to retain their status as usufructuaries will need to argue by way of analogy the acts that this Court established do constitute “use.”

Additionally, the Court should not have discussed the “familial relationship” between Ms. Edwin and Mr. Johnson when it analyzed whether Mr. Johnson’s “use” of the Property was done in Ms. Edwin’s name. The Court interpreted Theriot’s holding to mean that if a usufructuary does not object to the naked owner’s occupation of the Property, it is implied that the naked owner has permission from the usufructuary to “use” the property, making the naked owner’s “use” done “on behalf of the usufructuary.”[135] Therefore, because Ms. Edwin did not compel Mr. Johnson to leave the Property, there was no need to discuss their post-marital relationship. With no objection from Ms. Edwin, Mr. Johnson’s “use” of the property was implied to be in the name of Ms. Edwin. Unnecessary discussion about the nature of their relationship only served to add unneeded confusion to future litigation.

Similarly, the Court placed too much emphasis on the benefit Ms. Edwin gained from her son’s “use” of the Property. Upon Mr. Johnson’s death, Ms. Edwin’s son became naked owner of the Property.[136] Applying the Court’s analysis of Theriot, Ms. Edwin’s son’s “use” of the Property was implied to have been done in her name.[137] Any financial benefit that Ms. Edwin may have gained from allowing her son to live on the Property is tenuous at best. Her son had already reached the age of majority, and she was therefore under no obligation to provide housing for her son. Thus, it appears that the Court was reaching to find some benefit that Ms. Edwin gained from her son’s “use” of the Property. As the Court pointed out, it is implied that a naked owner’s “use” of the property is in the usufructuaries name.[138] As such, the Court distorted its contention by trying to explain some way in which Ms. Edwin may have benefitted from her son’s “use” of the Property. Instead, the Court should simply have noted that because a naked owner cannot enjoy the property subject to usufruct on his own behalf, and because she did not object to her son’s “use” of the Property, Ms. Edwin’s son’s “use” of the Property was done in her name.

The majority, concurrence, and concurrence in part all disagreed on which, if any, of Ms. Edwin’s acts on the Property constituted “use,”[139] leaving much confusion surrounding the term “use.” The Louisiana legislature needs to define the scope of “use” in the context of usufructs, which would reduce confusion and, as a result, litigation that wastes the court system’s time and resources. Like in Article 537 which contains examples of what constitutes a “nonconsumable thing,” [140]  the legislature should include some of the examples of “acts” the majority determined were “uses” in Johnson. The legislature should reestablish that a usufructuary’s rights are akin to those of an owner and should specify that any manner of “use” of the thing subject to usufruct is sufficient to interrupt the accrual of the nonuse prescriptive period. It would also be worthwhile to include that an act of a usufructuary for the sole purpose of interrupting prescription of nonuse does not constitute “use.” Including a definition of “use” in this manner would serve to establish that, so long as a usufructuary is not acting for the sole purpose of interrupting prescription of nonuse, practically any act of a usufructuary on the thing subject to usufruct constitutes “use.”

VI.          CONCLUSION

The fact that the Louisiana Supreme Court was compelled to resolve this family dispute by deciding whether Ms. Edwin’s usufruct had prescribed due to nonuse, as well as the disparity between the Johnson concurrence, the concurrence in part, and the majority show that there is a gap in the Civil Code articles regarding termination of usufruct due to prescription of nonuse. Therefore, Article 621 should be amended to provide the following:

A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years. This applies whether the usufruct has been constituted on an entire estate or on a divided or undivided part of the estate.

The usufructuary may use the subject thing as the owner himself could. Any manner of use of the subject thing is sufficient to interrupt prescription. Acts such as maintenance, storage of the usufructuary’s possessions, hunting, and fishing constitute use of the thing subject to usufruct. However, if the usufructuary acts for the sole purpose of interrupting the prescriptive period set forth in this article, said act will not be sufficient to constitute use.

Whether this particular proposal is implemented or not, a clearer and more specific article regarding termination of usufruct due to nonuse would allow for these often-familial disputes to be resolved outside the court system and would make such matters much easier to resolve.

Branagan Mabry

[1]  In re Succession of Johnson, 2020-00815, p. 1 (La. 10/10/21), 332 So. 3d 643, 646; see also La. Civ. Code Ann. art. 621 (“A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years…”).

[2]  Johnson, 332 So. 3d at 646.

[3]  Id. at 648.

[4]  Id. at 648–51.      

[5]  See id. at 651 (Crichton, J., concurring); id. at 654 (McCallum, J., concurring in part, dissenting in part).      

[6]  Id. at 650 (majority opinion).      

[7]  Id. at 651 (Crichton, J., concurring).       

[8]  Id. at 654 (McCallum, J., concurring in part, dissenting in part).      

[9]  Id. at 646 (majority opinion).    

[10]  In re Succession of Estate of Johnson, 2019-0786, p. 1 (La. App. Cir. 5/28/20), 2020 WL 2789562, aff'd in part, rev'd in part sub nom. Johnson, 332 So. 3d 643.

[11]  Johnson, 332 So. 3d at 646.      

[12]  Applicant's Original Brief on the Merits at 3, Johnson, 332 So. 3d 643 (No. 2020-C-0815), 2020 WL 10186357.

[13]  Johnson, 2020 WL 2789562, at *1.      

[14]  Id.      

[15]  Johnson, 332 So. 3d at 646.    

[16]  Id.

[17]  Id.      

[18]  Id. at 649. From around 2003 to 2006, Ms. Edwin, a schoolteacher, stored her school supplies on the Property and she “visited” the Property on most weeks to retrieve said supplies. Id. Between 2006 and 2010, Ms. Edwin attended a variety of family gatherings, including birthday parties and an Easter egg hunt, on the Property and she brought their grandchildren to the Property to visit Mr. Johnson. Id. Between roughly 2006 and 2008, Ms. Edwin and their son mowed the Property’s lawn and, generally, “kept the place up.” Id. (internal quotations omitted). Ms. Edwin fished and kept her fishing equipment on the Property. Id. When Ms. Edwin moved after their separation, she left her furniture on the Property with Mr. Johnson. Id. In roughly 2007, Ms. Edwin “allowed” their son to live in the house on the Property with Mr. Johnson. Id. In 2008 and 2009, Ms. Edwin brought breakfast and dinner to the Property for Mr. Johnson daily. Id.      

[19]  Id. at 646.    

[20] Id.       

[21] Id.        

[22] Id. at 649–50.    

[23] Id. at 650.    

[24] Id. at 646.

[25] Id.  

[26] Id. at 650.

[27] Id.

[28] Id.              

[29] Id.

[30] Id. at 646.

[31]  Id.

[32]  Id. at 646–47.    

[33]  Id. at 647.    

[34]  Id.      

[35]  Id.

[36]  Id.

[37]  Id.

[38]  Id.

[39]  Id.

[40]  Id.

[41]  Id.

[42]  Id.

[43]  Id.

[44]  Id.

[45]  See generally Applicant's Original Brief on the Merits, Johnson, 332 So. 3d 643 (No. 2020-C-0815), 2020 WL 10186357.

[46]  Id. at 7 (citing LeBreton v. Rabito, 97-2221, p. 11 (La. 7/8/98), 714 So. 2d 1226, 1229).      

[47] Compare La. Civ. Code Ann. art. 621 (“A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years. This applies whether the usufruct has been constituted on an entire estate or on a divided or undivided part of an estate.”), with  La. Civ. Code Ann. art. 545 (“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.”) and La. Civ. Code Ann. art. 610 (“A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition.”) (emphasis added).

[48] Applicant's Original Brief on the Merits, supra note 45 at 7 (first citing La. Civ. Code Ann. art. 545; then citing La. Civ. Code Ann. art. 610; and then citing La. Civ. Code Ann. art. 621).

[49]  Id. at 9.

[50] Id. at 8–9 (citing Aucoin v. Fontenot, 304 So. 2d 754, 757 (La. Ct. App. 3 Cir. 1974)).

[51] Id. at 10.

[52] Id. at 9–10 (first citing La. Civ. Code Ann. art. 621 cmt. (b); then citing Theriot v. Terrebonne, 195 So. 2d 740, 743 (La. Ct. App. 1 Cir. 1967)).

[53] Reply Brief on Behalf of Respondents Lori J. Parker, Robert C. Johnson, Jr., and Aveis J. Parker Co-Administrators of the Succession of Robert Charles Johnson Civil Proceeding at 1, In re Succession of Johnson, 2020-00815 (La. 10/10/21), 332 So. 3d 643 (No. 2020-C-0815), 2020 WL 8701512.

[54] Id. at 5 (first citing La Civ. Code Ann. art. 610; and then citing La. Civ. Code Ann. art. 621).      

[55] Id.  

[56] Id. at 6–7 (citing La. Civ. Code Ann. art. 621).  

[57] Id.

[58] Johnson, 332 So. 3d 643, 648–51.

[59]  La. Civ. Code Ann. art. 477.

[60]  Id.

[61]  La. Civ. Code Ann. art. 3448.

[62]  See La. Civ. Code Ann. art. 2668 cmt. (b).

[63]  La. Civ. Code Ann. art. 534.

[64]  See La. Civ. Code Ann. art 478.

[65]  See In re Succession of Johnson, 2020-00815, p. 6 (La. 10/10/21), 332 So. 3d 643, 648–49.

[66]  La. Civ. Code Ann. art. 2668 cmt. (b).

[67]  La. Civ. Code Ann. art. 535 (“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 nonconsumables.”) (emphasis added).

[68]  La. Civ. Code Ann. art. 610.

[69]  La. Civ. Code Ann. art. 607.

[70]  La. Civ. Code Ann. art. 621 (“A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years. This applies whether the usufruct has been constituted on an entire estate or on a divided or undivided part of an estate.”).

[71] See id.  

[72]  La. Civ. Code Ann. art. 3466 (“If prescription is interrupted, the time that has run is not counted. Prescription commences to run anew from the last day of interruption.”).

[73]  See In Re Succession of Johnson, 2020-00815, pp. 4–10, 332 So. 3d 643, 648–51; id. at 651 (Crichton, J., concurring); id. at 652–54 (McCallum, J., concurring in part, dissenting in part).

[74]  La. Civ. Code Ann. art. 621; see also Theriot v. Terrebonne, 195 So. 2d 740 (La. Ct. App. 1 Cir. 1967), where the usufructuary, in part, sought for the court to recognize her “as the owner of the usufruct” at issue in order to maintain her rights of use and enjoyment. Id. at 741. Relying on Planiol, the court established that “a naked owner can never enter into the enjoyment of the use of the property until after the extinction of the usufruct” and it is therefore implied that a naked owner’s “use” of property subject to a usufruct is done “for the use and benefit of the usufructuary.” Id. at 742– 43 (citations omitted). Additionally, the court recognized that someone other than the naked owner may exercise the usufructuary’s rights in her name. Id. at 742. With the usufructuary’s permission, the usufructuary’s sister planted a garden on the property subject to usufruct, the usufructuary’s husband docked and operated boats on the subject property, and the usufructuary’s children maintained the subject property. Id.

[75]  La. Civ. Code Ann. art. 537 (“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.”).

[76]  La. Civ. Code Ann. art. 539. The inclusion of the terms “utility, profits, and advantages” seems to provide that in order for a usufructuary, or someone acting in her name, to exercise her right of usufruct, she must gain a benefit from her “use and enjoyment” of the thing. Id.

[77]  Id.  

[78]  See id.

[79] In re Succession of Johnson, 2020-00815, p. 6 (La. 10/10/21), 332 So. 3d 643, 649;      see also Bond v. Green, 401 So. 2d 639, 642–43 (La. Ct. App. 3 Cir. 1981) (citing La. Civ. Code Ann. art. 613) (holding that usufructuaries who sold land to naked owners were not bound to restore the dilapidated houses on the land because “[a] usufructuary is not bound to restore property that has been destroyed because of age.”).

[80]   See generally Theriot v. Terrebonne, 195 So. 2d 740 (La. Ct. App. 1 Cir. 1967).

[81]  La. Civ. Code Ann. art. 536 (“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.”).

[82]  La. Civ. Code Ann. art. 538.

[83]  La. Civ. Code Ann. art. 538.

[84]  La. Civ. Code Ann. art. 568.

[85]  La. Civ. Code Ann. art. 538; La. Civ. Code Ann. 628; but see Adam N. Matasar, The Usufruct Revisions: The Power to Dispose of Nonconsumables Now Expressly Includes Alienation, Lease, and Encumbrance; Has the Louisiana Legislature Fundamentally Altered the Nature of Usufruct, 86 Tul. L. Rev. 787, 805 (2012) ("If the usufruct terminates upon death of the usufructuary and if the naked owners are the successors of the usufructuary, then they would be reimbursing themselves out of the estate of the deceased usufructuary, which they likely stood to inherit. Furthermore, if the usufructuary spent the money received upon alienation of the nonconsumable, then the naked owners, even if not successors of the usufructuary, would be relegated to the position of unsecured creditors, forced to wait in line with the other creditors and limited to recovering whatever is left of the estate.") (citing In re Succession of Catching, 45, 145, p. 7 (La. App. 2 Cir. 4/14/10), 35 So. 3d 449, 452-53).

[86]  Unlike a personal servitude which benefits a person, La. Civ. Code Ann. art. 534,  “[a] predial servitude is a charge on a servient estate for the benefit of a dominant estate,” La. Civ. Code Ann. art 646.

[87]  See Marina Enterprises v. Ahoy Marine Services, 496 So. 2d 1080, 1083 (La. Ct. App. 4 Cir. 1986) (citing La. Civ. Code Ann. art. 645).

[88]  La. Civ. Code Ann. art. 759.

[89] A.N. Yiannopoulous, Personal Servitudes § 8:8 in 4 Louisiana Civil Treatise (4th ed. 2022).

[90]  See Ashland Oil Co. v. Palo Alto, Inc., 615 So. 2d 971, 974 (La. Ct. App. 1 Cir. 1993). In Ashland Oil Co., Inc. v. Palo Alto, Inc., an oil company was granted a pipeline right of way, which the oil company used to produce methanol. Id. at 972. The parties stipulated that the servitude’s prescriptive period of nonuse would be one year as opposed to ten years. Id. After the production of methanol became unprofitable for the oil company, the oil company pumped CO2 through the pipeline once every eleven and half months in an effort to interrupt prescription of nonuse. Id. The court held that this was a “mere gesture” and was therefore not sufficient to interrupt prescription of nonuse. Id. at 974.

[91]  A.N. Yiannopoulous, Personal Servitudes § 2:2, in 3 Louisiana Civil Law Treatise (5th ed. 2021).

[92]  A.N. Yiannopoulous, Predial Servitudes § 8:8, in 4 Louisiana Civil Law Treatise (4th ed. 2022).

[93]  See supra text accompanying note 90.

[94]  See supra text accompanying note 90.

[95]  In re Succession of Johnson, 2020-00815, p. 1 (La. 10/10/21), 332 So. 3d 643, 646.    

[96] Id. at 647–51; id. at 651 (Crichton, J., concurring); id. at 652–54 (McCallum, J., concurring in part, dissenting in part).      

[97]  Id. at 647–48 (majority opinion).

[98]  La. Civ. Code Ann. art. 610 (“A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition.”).

[99]  La. Civ. Code Ann. art. 621 (“A usufruct terminates by the prescription of nonuse if neither the usufructuary nor any other person acting in his name exercises the right during a period of ten years. This applies whether the usufruct has been constituted on an entire estate or on a divided or undivided part of an estate.”).

[100]  Johnson, 332 So. 3d at 647 (first citing La. Civ. Code Ann. art 610; and then citing La. Civ. Code Ann. art 621).

[101] Id. at 647–48.   

[102]  See La. Civ. Code Ann. art. 610; La. Civ. Code Ann. art. 621.

[103]  La. Civ. Code Ann. art. 607 (“The right of usufruct expires upon the death of the usufructuary.”).

[104]  La. Civ. Code Ann. art. 535 (“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 nonconsumables.”) (emphasis added).

[105]  Johnson, 332 So. 3d at 648 (first citing La. Civ. Code Ann. art 607; and then citing La. Civ. Code Ann. art. 535).    

[106] Id.        

[107] Id. (citing La. Civ. Code Ann. art. 539 cmt. (b)).        

[108] Id.   

[109] Id. (omissions on original).   

[110] Id. at 648–49.  

[111] Id. (citing La. Civ. Code Ann. art. 477)        

[112] Id. at 649; see also La Civ. Code Ann. art. 630 (“Habitation is the nontransferable real right of a natural person to dwell in the house of another.”); La. Civ. Code Ann. art. 634 (“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.”).       

[113] Johnson, 332 So. 3d at 649.             

[114] Id.   

[115] Id. (quoting Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708 So. 3d 731, 735) (“[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and [make a determination based on] a preponderance of the evidence.”) (alterations in original).

[116] Id.

[117] Id. at 649–50.  

[118] Id. at 650 (stating that Ms. Edwin’s “actions of using the property were numerous, including: fishing and storing fishing equipment on the property, caring for the yard, furnishing the home, and allowing her former husband, to whom she provided care by bringing him food twice daily, and their son to remain on the property.") (emphasis added).

[119] Id. (internal quotations omitted) (quoting Theriot v. Terrebonne, 195 So. 2d 740, 743 (La. App. 1 Cir. 1967)).

[120] Id.   

[121] Id. at 651.

[122] Id. at 650. The Court was convinced that Ms. Edwin’s son’s “use” of the Property was beneficial to her “because their son needed a place to live and she would have had difficulty assisting him in her single-income household.” See id. at 649.  

[123] Id. at 651 (Crichton, J., concurring) (citations omitted).

[124] Id.  

[125] Id.   

[126] Id. (citing Yiannopoulos & Scalise, Personal Servitudes § 6:11, in 3 La. Civ. L. Treatise (5th ed. 2021)).

[127] Id. (citing Yiannopoulos & Scalise, Personal Servitudes § 6:11, in 3 La. Civ. L. Treatise (5th ed. 2021)).

[128] Id. at 652 (McCallum, J., concurring in part, dissenting in part).

[129] Id.

[130] Id. at 654.

[131] Id.

[132] Id. (“The type of use, or possession, envisioned by Article 621 usually means detention; ‘[t]hat is, one’s factual authority over a thing without any intent to own it.’”) (alterations in original) (citations omitted).

[133] Id. at 650 (majority opinion); see also supra text accompanying note 118.

[134] Johnson, 332 So. 3d at 649–650.

[135] Id. at 650.   

[136] Id. at 646.   

[137] Id. at 650.   

[138] Id.  

[139]  See supra Sections IV(B)-(D).

[140]  See La. Civ. Code Ann. art. 537.