Usufruct and Liability for Repairs

The Louisiana Usufruct: Who is Liable for Repairs?

This post describes who is liable for repairs when someone owns the usufruct of property, while others are naked owners.

It's common in Louisiana for a spouse to leave their surviving spouse the usufruct of property. Here's an example: Wife and Husband marry, each for the second time. They each have children from their prior marriages. Wife owns the home they live in. Wife doesn't want Husband to be homeless if she predeceases him, so she writes a will and leaves Husband the lifetime usufruct of her home, and she names her children (Husband's step-children) as the naked owners of her home.

Wife dies. Husband and Wife's children somehow cooperate enough to complete the Succession. Husband is now living in the home. And let's say the home is 40 years old and in need of constant repair. Who is responsible for these repairs. The usufructuary? The naked owners?

There are several Louisiana laws that address liability for repairs in these circumstances. The general rule is that the usufructuary is responsible for ordinary maintenance and repairs, while the naked owner is responsible for extraordinary repairs, unless the usufructuary's fault or neglect cause the extraordinary repairs to become necessary.

Extraordinary repairs are those for the reconstruction of the whole or a substantial part of the property subject to usufruct. All others are ordinary repairs. As you might imagine, usufructaries will argue that all repairs are extraordinary. Naked owners will argue that all repairs are ordinary. 

During the existence of the usufruct, a naked owner can compel the usufuctuary to make the repairs for which the usufructuary is responsible. 

But the usufructuary may not compel the naked owner to make the extraordinary repairs for which the naked owner is responsible. And if the naked owner refuses to make these extraordinary repairs, the usufructuary may do so, and the usufructuary shall be reimbursed without interest by the naked owner at the end of the usufruct.

If, in the above example, the usufruct does not end until the death of the usufructuary, then the usufructuary's estate will likely seek this reimbursement from the naked owners after the usufructuary dies.

In addition, there are even more rules that address when, for example, a usufructuary abandons his usufruct, or when property has been totally destroyed through accident, but this post should give the basic information you may be looking for regarding the liability for repairs.

Make sure you address these things the right way on the front end so they don't became a disaster on the back end. Work with the right estate planning attorney who will listen to your objectives and suggest the best ways for you to leave a legacy behind - instead of a mess that winds up in court.

This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Louisiana Estate Planning Attorney
Phone: (225) 329-2450