We had a call last week from one of our clients regarding the usufruct of mineral interests. So, the following is my attempt to lay out the law as it relates to the Louisiana usufruct and mineral interests.
The Louisiana Mineral Code governs the rights of the usufructuary in minerals. This point alone complicates things because all other usufruct laws are governed by the Louisiana Civil Code - except for the laws that relate to the usufruct of minerals.
The Louisiana Mineral Code defines a mineral servitude as follows: "A mineral servitude is the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership."
- A usufructuary of land may grant a mineral lease on the estate of which he has the usufruct if his usufruct includes mineral rights susceptible to leasing, but any such lease is extinguished with the termination of the usufruct. IF THE USUFRUCT OF LAND IS FOR LIFE, AND THE USUFRUCTUARY DIES, THE LEASE TERMINATES.
- A usufructuary of a mineral servitude or other executive interest may grant a mineral lease that extends beyond the term of the usufruct and binds the naked owner of the servitude.
- Except as specially provided in Articles 189 through 191, the usufruct of land does not include the landowner's rights in minerals. SEE 189 THROUGH 191.
- Article 189. A conventional usufruct, including one created by a donation inter vivos or mortis causa, may by express provision include the use and enjoyment of all or a specified portion of the landowner's rights in minerals. NEED TO INCLUDE THE USUFRUCT OF MINERALS IN THE LAST WILL AND TESTAMENT.
- Article 190A. If a usufruct of land is that of parents during marriage, or any other legal usufruct, or if there is no provision including the use and enjoyment of mineral rights in a conventional usufruct, the usufructuary is entitled to the use and enjoyment of the landowner's rights in minerals as to mines or quarries actually worked at the time the usufruct was created. MINE MUST BE WORKING AT BEGINNING OF USUFRUCT IF USUFRUCTUARY IS NON-SPOUSE
- Article 190B. If a usufruct of land is that of a surviving spouse, whether legal or conventional, and there is no contrary provision in the instrument creating the usufruct, the usufructuary is entitled to the use and enjoyment of the landowner's rights in minerals, whether or not mines or quarries were actually worked at the time the usufruct was created. However, the rights to which the usufructuary is thus entitled shall not include the right to execute a mineral lease without the consent of the naked owner. SURVIVING SPOUSE/USUFRUCTUARTY MUST GET CONSENT OF NAKED OWNER TO EXECUTE A MINERAL LEASE.
- If the land subject to the usufruct, or any part thereof is subject to a lease granted by the landowner prior to the creation of the usufruct, the usufructuary is entitled only to royalties on actual or constructive production allocable to him under Article 191. If such a lease terminates, or if the land or any part thereof is not under lease at the time the usufruct is created, the usufructuary's right of use and enjoyment includes the right to execute leases as to any rights to which he is entitled under Article 190 and, accordingly, to retain bonuses, rentals, or other payments, or the proportionate part thereof, allocable to payments, or the proportionate part thereof, allocable to his interest under Article 191. Such a lease executed by the usufructuary may not extend beyond the period of his usufruct.
One who has the usufruct of a mineral right, as distinguished from the usufruct of land, is entitled to all of the benefits of use and enjoyment that would accrue to him if he were the owner of the right. He may, therefore, use the right according to its nature for the duration of his usufruct.
A usufructuary of land benefitting under Article 190 or 191 or a usufructuary of a mineral right is not obligated to account to the naked owner of the land or of the mineral right for production or the value thereof or any other income to which he is entitled.
If a usufruct of land does not include mineral rights, the naked owner of the land has all of the rights in minerals that he would have if the land were not subject to the usufruct. The rights may not be exercised in coal or lignite which is to be produced through surface mining techniques without first obtaining the consent of the usufructuary. If the usufructuary is entitled to the benefits provided in Article 190 and 191, the rights of the landowner are subject thereto.
In enjoying the right recognized by Article 195, the naked owner is entitled to use only so much of the surface of the land as is reasonably necessary for his operations, but he is responsible to the usufructuary or those holding rights under him for the value of such use and for all damages caused by the naked owner's mining activities or operations. If the activities or operations are conducted by one to whom the naked owner has granted a mineral right, the naked owner and his grantee are liable in solido for damages suffered by the usufructuary or those holding rights under him.
As you might imagine, the concept of owning the usufruct of mineral rights can be complicated. If you would like to retain us to protect your estate for yourself and your family and loved ones, feel free to contact us for a no-cost initial visit/discussion at 225-329-2450 (or toll free at 866-491-3884), or send us an email at firstname.lastname@example.org.