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Permalink Reply by Skip Peel - Mineral Consultant on January 4, 2012 at 13:30

It's probably not a "release" form, it is likely a "ratification" form.  You and your sister are "naked" owners with a "usufruct" in favor of your mother.

Louisiana's Usufruct and Right of Habitation

When we look at a complete property owned by a person, it is fair to say that the ownership of that property is the right that confers on the owner direct, immediate and exclusive authority over the property. He may use, enjoy and dispose of the property.

When two or more people own a property together, it is referred to as ownership in "indivision." In this case, each person owns an undivided interest in the property. Neither own any particular piece of the property because each own a portion of the whole.

A common division of ownership under Louisiana law is when one person has the use of the property and another has the ownership of it. The person with the use is said to have a usufruct of the property whereas the owner is called the naked owner.

USUFRUCT

Usufruct is a real right in a property owned by another, normally for a limited time or until death. Simply stated, it is the right to use the property, to enjoy the fruits and income of the property, to rent the property out and to collect the rents, all to the exclusion of the underlying real or naked owner. The usufructuary has the full right to use the property but cannot dispose of the property nor can it be destroyed.

For a married couple living in community, La Civil Code Art 890 grants an automatic usufruct to the surviving spouse over all of the community property unless it is voided by a will. Thus, the surviving spouse has total use of the property but only owns � of it. The total use includes the right to exclude the children, or naked owners, from the property while that spouse has the usufruct. Unless confirmed for life in a will, the legal usufruct of Art 890 terminates upon the remarriage of the surviving spouse. It would also terminate at the death of that spouse and the full ownership of the property would then vest in the children or other descendants.

If there is a will but it only states that the surviving spouse is to have the usufruct with no further enlargement, the court in Darby v Rozas 580 So2d 984 (La 3rd Cir 1991) held that this is no different than the legal usufruct conferred by law and will terminate upon remarriage. If the testator wants the usufruct to be for life and to extend beyond remarriage, that point should be made clear in the will.

A usufruct over property can be established by contract in which the owner would grant a usufruct over a tract of property for a stated period of time. A usufruct is created by law in favor of a surviving spouse over the community property owned by the decedent, even though the children of the decedent may have inherited the property as naked owners. The usufruct can be given to another person in a will even if it is in conflict with the legal usufruct in favor of the surviving spouse.

Since the usufruct is a legal right granted by one person to another, that right can be according to almost any terms the parties agree to. For instance, it could be for a stated term, covering only certain stated properties, it could be set to terminate if certain conditions are met, such as marriage of a child or remarriage of a spouse, it can be granted to several people to share jointly, and it can be given to one person for a period of time and to another after some stated event occurs.

The most common form of usufruct is that held by a surviving spouse after the decedent's death. If the decedent died owning community property and he had not disposed of it by will, then the surviving spouse has a legal usufruct over the deceased spouse's share of community property even though the children are considered to have inherited the property and are the naked owners. Unless modified by will, this usufruct conferred by law terminates upon the death or remarriage of the surviving spouse.

In addition to the community property, the decedent many times leaves a usufruct over his separate property in favor of the surviving spouse.

The usufructuary is entitled to the income from the property subject to the usufruct. This income is generally referred to as fruits under Louisiana law; thus the term usufruct relates to the right to use the fruits of the property. The difference in fruits and usufruct as compared to the naked owners and the principal is similar to the talking about the fruits as being different from the tree. The usufructuary does not own the tree but has the full and unfettered right to gather the fruits from the tree.

A usufructuary may cut trees on the land and use stones, sand and other materials from the land but only for his own use or for the improvement of the land. However, if the land is managed as timberland, then the usufructuary may cut the trees and retain the proceeds for himself.

A usufructuary may be required to post a bond or security in the amount of the property subject to the usufruct. This requirement can be waived in the granting of the usufruct and this requirement does not exist when the usufruct is granted by law, as in the case of a surviving spouse.

The usufructuary is obligated to make the normal and necessary repairs whereas the naked owner is responsible for extraordinary repairs. The usufructuary is, however, responsible for any losses resulting from his fraud, default or neglect and for the annual charges to the property such as property taxes.

The naked owners may dispose of their ownership or may mortgage the property but not in any manner that will have an adverse affect on the usufructuary. The naked owner can exercise several rights but none of them can interfere in any way with the rights of the usufructuary.

A usufruct for a term terminates at the end of that term. Otherwise, a usufruct terminates at the death of the usufructuary.

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Permalink Reply by Skip Peel - Mineral Consultant on January 5, 2012 at 14:36

I can't tell you what Chesapeake would do in regard to paying royalties if you do not ratify the lease.  That is a question for an experienced O&G attorney.

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Permalink Reply by rodney fenn on January 5, 2012 at 16:06

But my sister and I need to sign this ratification so the process can move forward?

My mother said she was told we need to get it back ASAP.

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Permalink Reply by Skip Peel - Mineral Consultant on January 5, 2012 at 16:14

How many mineral acres are we talking here, rodney?

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Permalink Reply by rodney fenn on January 5, 2012 at 16:27

1/5 of an acre

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Permalink Reply by Skip Peel - Mineral Consultant on January 5, 2012 at 16:29

Sign the ratification.

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Permalink Reply by rodney fenn on January 5, 2012 at 16:36

I see that it mentions execution of this Division Order. It seems we would be disclaiming interest in payments made to my mother during her lifetime and if she passes away, then the ownership of the royalty interest would to my sister and I and maybe we would have to notify Chesapeake and then go thru some process from there. Is it possible I'm onto the real purpose of it finally?

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Permalink Reply by Skip Peel - Mineral Consultant on January 5, 2012 at 16:42

Yes.