LOUISIANA P ROPERTY LAW
OUTLINE
DANE S. CIOLINO1
WINTER 2002
T ABLE OF CONTENTS
CLASSIFICATION OF PROPERTY . . . . . . . . . .
Common, Public & Private Things . . . . . .
Generally . . . . . . . . . . . . . . . . .
Water Bodies and Water Bottoms .
Roads . . . . . . . . . . . . . . . . . . . .
Corporeals and Incorporeals . . . . . . . . . .
Incorporeal Things . . . . . . . . . . .
Corporeal Things . . . . . . . . . . . .
Movables and Immovables . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . .
Immovables . . . . . . . . . . . . . . .
Movables . . . . . . . . . . . . . . . . .
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.1
.1
.1
.1
.4
.5
.5
.5
.5
.5
.6
10
ACCESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fruits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Owner’s Rights to Fruits . . . . . . . . . . . .
Possessor’s Rights to Fruits and Products
Accession in Relation to Immovables . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . . . .
Ownership . . . . . . . . . . . . . . . . . . . . . .
Claims . . . . . . . . . . . . . . . . . . . . . . . . .
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10
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13
TRANSFER OF OWNERSHIP . . . . . . . . . . . . . . .
Immovables . . . . . . . . . . . . . . . . . . . . . .
When Effective As Between Parties
When Effective As to Third Parties
Movables . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . .
When Effective . . . . . . . . . . . . . .
The Bona Fide Purchaser Doctrine . . . . . . .
Lost and Stolen Things . . . . . . . . .
Vices of Consent . . . . . . . . . . . . .
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16
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Associate Professor of Law, Loyola Law School, New Orleans. The author’s e-mail address is dciolino@loyno.edu.
LOUISIANA PROPERTY LAW
Registered Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CO-OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Presumption of Equality . . . . . . . . . . . . .
Comparative Note . . . . . . . . . . . . . . . . .
Rights and Duties of Co-Owners . . . . . . . . . . . . .
Fruits & Products . . . . . . . . . . . . . . . . .
Use and Management of Co-Owned Thing
Right to Reimbursement of Expenses . . . .
Substantial Alterations and Improvements .
Partition of Co-Owned Property . . . . . . . . . . . . .
Right to Partition . . . . . . . . . . . . . . . . . .
Excluding Partition . . . . . . . . . . . . . . . . .
Modes of Partition . . . . . . . . . . . . . . . . .
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16
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18
DISMEMBERMENTS OF OWNERSHIP–SERVITUDES GENERALLY
Ownership Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rights of Ownership . . . . . . . . . . . . . . . . . . . . . . . .
Full Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Distinguishing Types . . . . . . . . . . . . . . . . . . . . . . . .
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19
19
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19
20
PERSONAL SERVITUDES . . . . . . . . . . . . . . . . .
Right of Use . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . .
Distinguishing from Usufruct . . . .
Right of Habitation . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . .
Establishment and Extinction . . . . .
Duties of Right Holder . . . . . . . . .
Usufruct . . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . .
Rights and Duties of Usufructuary .
Rights and Duties of Naked Owner
Termination of Usufruct . . . . . . . .
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20
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21
22
28
28
PREDIAL SERVITUDES . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . .
“Predial Servitude” Defined
Types . . . . . . . . . . . . . . .
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LOUISIANA PROPERTY LAW
Requirement of Benefit to a Dominate Estate . . . . . . . .
Requirement of Dual Estates . . . . . . . . . . . . . . . . . . .
Nature of Real Obligation Imposed by Predial Servitude
Natural Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Natural Drainage . . . . . . . . . . . . . . . . . . . . . . . . . . .
Estate Bordering on Running Water . . . . . . . . . . . . . .
Estate Through Which Water Runs . . . . . . . . . . . . . .
Legal Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Limitations on Ownership . . . . . . . . . . . . . . . . . . . . .
Common Enclosures . . . . . . . . . . . . . . . . . . . . . . . .
Right of Passage–Enclosed Estates . . . . . . . . . . . . . .
Building Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Building Restrictions” Defined . . . . . . . . . . . . . . . . .
Nature of Building Restrictions . . . . . . . . . . . . . . . . .
Establishing Building Restrictions . . . . . . . . . . . . . . . .
Terminating and Amending Building Restrictions . . . . .
Interpreting Building Restrictions . . . . . . . . . . . . . . . .
Conventional Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Establishing Conventional Servitudes . . . . . . . . . . . . .
Rights of the Dominant Estate . . . . . . . . . . . . . . . . . .
Extinction of Conventional Servitudes . . . . . . . . . . . .
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41
ACQUISITIVE PRESCRIPTION AND POSSESSION–GENERALLY
Acquisitive Prescription . . . . . . . . . . . . . . . . . . . . . . . . . .
Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Comparative Note . . . . . . . . . . . . . . . . . . . . . . . .
Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Possession” Defined . . . . . . . . . . . . . . . . . . . . . .
Acquiring and Maintaining Possession . . . . . . . . . .
Loss of Possession . . . . . . . . . . . . . . . . . . . . . . .
Conflicts in Possession . . . . . . . . . . . . . . . . . . . . .
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ACQUISITIVE PRESCRIPTION OF IMMOVABLES . .
Ten-Year Acquisitive Prescription . . . . . . . . . .
Elements Explained . . . . . . . . . . . . . .
Tacking of Possession . . . . . . . . . . . .
Interruption of Prescription . . . . . . . . .
Thirty-Year Acquisitive Prescription . . . . . . . . .
Generally . . . . . . . . . . . . . . . . . . . . .
Irrelevance of Constructive Possession
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LOUISIANA PROPERTY LAW
ACQUISITIVE PRESCRIPTION OF MOVABLES
Generally . . . . . . . . . . . . . . . . . . . . . . .
Three-Year Acquisitive Prescription . . . . .
Possession . . . . . . . . . . . . . . . .
Good Faith . . . . . . . . . . . . . . . .
Juridical Act . . . . . . . . . . . . . . .
Possession . . . . . . . . . . . . . . . .
Ten-Year Acquisitive Prescription . . . . . .
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53
53
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54
LOUISIANA PROPERTY LAW
I.
CLASSIFICATION OF PROPERTY: Things are divided into common, public, and private;
corporeals and incorporeals; and movables and immovables. See LA. CIV. CODE art. 448.
A.
Common, Public & Private Things
1.
2.
Generally
a.
Common Things: Things that may not be owned by anyone and which may
be used freely in the manner which nature intended (for example, the air
and the high seas). See LA. CIV. CODE art. 449.
b.
Public Things: Things vested in the state or one of its subdivisions in its
public capacity. Their use is open to all although the use may be restricted
for the public’s benefit. The key to public things is that they are out of
commerce. Public things include natural navigable waters, territorial sea,
seashore, highways, streets, and public squares. See LA. CIV. CODE art.
450.
c.
Private Things: Things owned by private individuals or by the state in its
private capacity. Anything that is not common or public is private. The key
to private things is that they are in commerce. See LA. CIV. CODE art. 453.
Water Bodies and Water Bottoms
a.
Bodies of Water
(1)
Navigable Waters
(a)
Generally: All natural navigable bodies of water are owned
by the state as public things and their use is free to all. See
LA. CIV. CODE art. 450.
(b)
Navigability: A body of water is “navigable” if it is capable
of being used as a highway for commercial traffic. If it is
navigable in fact, it is navigable in law. Note that the body
of water need not be currently navigated; it only needs to
be capable of being so used.
(2)
Navigable Canals: If a canal is built with private funds on private
land it will be private property and public use can be effectively
enjoined. Even if public water is diverted to the canal its ownership
will remain private. See LA. CIV. CODE art. 450, cmt. f.
(3)
Sea and Seashore
(a)
High Seas: The high seas are a common thing. See LA.
CIV. CODE art. 449.
1
LOUISIANA PROPERTY LAW
b.
(b)
Territorial Sea: The “territorial sea” is a public thing. See
LA. CIV. CODE art. 450. Practically speaking, the territorial
sea is the Gulf of Mexico to the extent it is owned by the
State of Louisiana. The courts have also interpreted sea to
include Lake Pontchartrain and, under the arms of the sea
doctrine, those small, irregularly shaped bodies of water in
the vicinity of the open gulf.
(c)
Seashore: The seashore is a public thing. See LA. CIV.
CODE art. 450.
i)
Generally: Seashore is “the space of land over
which the waters of the sea spread in the highest
tide during the winter season.” See LA. CIV. CODE
art. 451. Practically speaking, the state’s
owners hip extends to that land normally covered
by the waters of the Gulf during the highest tides
of the winter season.
ii)
Dardar: In Dardar v. Lafourche Realty Co, 985
F.2d 824 (5th Cir. 1993), the Fifth Circuit held that
nonnavigable tidelands and swampland subject to
indirect freshwater tidal overflow–but not direct
coastal ebb and flow–may be privately owned.
Accord LA. REV. STAT . § 9:1115.1.
Water Bottoms
(1)
Bottoms of Nonnavigable Water Bodies: Privately owned. Cf. LA.
CIV. CODE art. 450.
(2)
Bottoms of Navigable Rivers and Streams
(a)
Beds : The state owns the beds of navigable rivers and
streams to the low water mark. See LA. C IV. CODE art.
450.
(b)
Banks: The bank is the land between the ordinary highand low-water mark. Nevertheless, when there is a levee
established according to law, it establishes the bank. See
LA. CIV. CODE art. 456.
i)
Private Ownership: The banks of navigable rivers
and streams are private things. See LA. CIV.
CODE art. 456.
2
LOUISIANA PROPERTY LAW
ii)
(3)
c.
Public Use: Banks of navigable rivers and streams
are private things subject to public use. See LA.
CIV. CODE art. 456. The use must be incidental
to navigation on the stream. Mooring would be
allowed but not camping on the banks. See L A .
CIV. CODE art. 456, cmt. b.
Bottoms of Other Navigable Water Bodies: The bottoms of all
other natural navigable water bodies are public things. See LA. CIV.
CODE art. 450.
(a)
State Owns to High-Water Mark: The state’s ownership
is not limited to the land lying below the ordinary low water
mark, since the definition of bank contained in article 456,
which is the source of the limitation of the state’s
ownership of rivers, applies only to the banks of rivers.
Consequently, the state’s ownership of all natural navigable
water bodies, except for rivers and streams, extends to the
ordinary high water mark.
(b)
River or Something Else?: To distinguish between rivers
and other water bodies, courts consider the following
factors. See State v. Placid Oil Co., 300 So. 2d 154 (La.
1974).
i)
Size and Shape: Compare width to bodies of water
that flow into it.
ii)
Depth: In relation to waters flowing into it.
iii)
History: Historical designation.
iv)
Current: In relation to waters flowing into it.
Accretion, Alluvion and Dereliction: Alluvion and dereliction which form
along the banks of a river or stream belong to the riparian landowner;
accretion and dereliction which form along a body of water that is not a
river or a stream belong to the state. See Davis Oil v. Citrus Land Co.,
576 So. 2d 495 (La. 1991); LA. CIV. CODE arts. 499-500.
(1)
Definitions
(a)
Alluvion: Alluvion is the accretion that forms successively
and imperceptibly on the bank of a river or stream. See
LA. CIV. CODE art. 499.
3
LOUISIANA PROPERTY LAW
(b)
(2)
3.
Dereliction: Dereliction is the successive and imperceptible
receding of water from the bank of a river or stream. See
LA. CIV. CODE art. 499.
Division of Alluvion: If alluvion forms in front of the property of
several owners, each owner is entitled to a fair proportion of the
area of the alluvion and a fair proportion of the new frontage,
depending on the relative values of the frontage and acreage. See
LA. CIV. CODE art. 501.
d.
Avulsion: If an identifiable piece of ground is moved from one place to
another by the “sudden action” or the water of a river or stream, the original
owner may claim it. Suit must be brought within a year, or later, if the
owner of the bank to which the land has become united has not taken
possession. See LA. CIV. CODE art. 502.
e.
Change of Course: When a stream changes course all who lost land in the
process will be able to “take from the riverbed” in proportion to the land lost
due to the course change. See LA. CIV. CODE art. 504.
Roads
a.
b.
Generally: Roads may be either public or private. See LA. CIV. CODE art.
457.
(1)
Public Roads: A public road may either be owned by the public or
subject to public use but actually owned by a private person. See
LA. CIV. CODE art. 457.
(2)
Private Roads: A private road is one that is not subject to public
use. See LA. CIV. CODE art. 457.
Dedication
(1)
Formal Dedication: Occurs when there is a valid donation.
(2)
Statutory Dedication: The most common way that roads become
public. Occurs when there is essential compliance with the statute,
which requires the recordation of a map or plat that describes
streets, etc. and that dedicates the streets to public use. See LA.
REV. STAT . § 33:5051.
(3)
Tacit Dedication: If the government maintains a road for more than
three years, it becomes public through tacit dedication. See LA.
REV. STAT . § 48:491. In St. Charles Parish School Board v.
P&L Investment Corp., 674 So. 2d 218 (La. 1996), the Louisiana
Supreme Court found tacit dedication when the landowner
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LOUISIANA PROPERTY LAW
permitted the governmental entity to fill the road with shells, then
pave it and thereafter maintain it.
(4)
B.
Corporeals and Incorporeals: All things are either corporeal or incorporeal. See LA. CIV.
CODE arts. 448, 461, 470 & 473.
1.
2.
C.
Implied Dedication: Occurs when lots are sold with reference to
streets or when one makes an informal offer to the public to use the
road followed by acceptance through actual use. Title remains with
the original owner but subject to the public’s right of way.
Incorporeal Things
a.
Generally: Incorporeals are things with no body that are comprehended by
the understanding. See LA. CIV. CODE art. 461. For example, the following
are “incorporeals”: right of inheritance, servitudes, and obligations. Id.
b.
Movable or Immovable: Incorporeals can be either movable or immovable.
(1)
Incorporeal Immovables: Rights and actions that apply to
immovables are incorporeal immovables. Mineral leases are
incorporeal immovables. See LA. CIV. CODE art. 470.
(2)
Incorporeal Movables: Rights and actions that apply movables are
incorporeal movables. Interests in a juridical person, such as a
corporation or a partnership, are movable even if the juridical
person owns immovables. See LA. CIV. CODE art. 473.
Corporeal Things
a.
Generally: Corporeals are things that have a body, whether animate or
inanimate, and can be felt or touched. See LA. CIV. CODE art. 461.
b.
Corporeal Movables: Corporeal movables are things animate or inanimate
that have a body and can be moved or move normally from place to place.
See LA. CIV. CODE art. 471.
Movables and Immovables: Things are divided into “movables and immovables.” See LA.
CIV. CODE art. 448.
1.
Generally: Significance of distinction between immovable and movable things:
a.
Scope of Transfer and Encumbrance: Transfer or encumbrance of an
immovable includes all of its component parts. See, e.g., LA. CIV. CODE
arts. 469 & 1839.
b.
Rules to Acquire: Different rules of acquisition.
c.
Actions and Rights: Different actions and rights attach to each kind of thing.
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LOUISIANA PROPERTY LAW
d.
2.
Public Records Doctrine: Immovables are subject to the Louisiana public
records doctrine under which any transfer or encumbrance of an immovable
must be recorded to affect third parties.
Immovables
a.
Generally: The Civil Code classifies the following things as immovables:
(1)
(2)
b.
Land and its Component Parts: Tracts of land with their component
parts are immovables. See LA. CIV. CODE art. 462.
(a)
Component Parts: Component parts include buildings, other
constructions, standing timber and ungathered crops “when
they belong to the owner of the ground.” See LA. CIV.
CODE art. 463.
(b)
Integral Parts: Things incorporated into a tract of land, a
building, or other construction, so as to become an integral
part of it, such as building materials, are its component
parts. See LA. CIV. CODE art. 465.
Separate Immovables: Buildings and standing timber are separate
immovables when they belong to a person other than the owner of
the ground. See LA. CIV. CODE art. 464.
Buildings as Immovables or Separate Immovables: The Civil Code does not
define a building. The Louisiana Supreme Court has identified several
criteria as relevant in determining whether a structure is a building: whether
it is to be inhabited by people, its cost, its permanence, and prevailing notions
of what constitutes a building. See P.H.A.C. Services v. Seaways
International, Inc., 403 So. 2d 1199 (La. 1981) (holding that three-story
steel offshore living quarters unit was a building even though it was built on
blocks at a construction site for transport offshore).
(1)
Separate Ownership: When there is no unity of ownership between
the ground and the building, the building is a separate immovable
because article 464 classifies it as such. See LA. CIV. CODE art.
464.
(2)
Unity of Ownership: When there is unity of ownership between the
ground and the building, the building is an immovable because it is
a component part of a tract of land. See LA. CIV. CODE arts. 462
& 463.
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c.
Timber
(1)
Standing Timber:
(a)
(b)
(2)
d.
e.
Separate Ownership: Ownership of standing timber
separate from the ground is expressly sanctioned by the
Civil Code.
i)
Classification Scheme: When there is no unity of
ownership between the ground and the standing
timber, the standing timber is an immovable
because article 464 classifies it as a separate
immovable. See LA. CIV. CODE art. 464.
ii)
Landowner’s Right to Demand Removal: The
owner of the land can compel the owner of the
s eparately-owned timber to remove it within a
reasonable time. Willetts Wood Products Co . v .
Concordia Land & Timber Co., 169 La. 240, 124
So. 841 (1929).
Unity of Ownership: When there is unity of ownership
between the ground and the standing timber, the standing
timber is an immovable because it is a component part of
a tract of land. See LA. CIV. CODE arts. 462 & 463.
Severed Timber: Of course, once the timber has been cut down, it
is a movable. See LA. CIV. CODE art. 463, cmt. d (“Trees cut
down . . . are movables.”).
“Other Constructions”: The classification of “constructions” other than
buildings that are permanently attached to the ground (for example, a large
advertising billboard embedded in concrete) turns on unity or separateness
of ownership. See LA. CIV. CODE art. 463.
(1)
Unity of Ownership: Immovable component parts when owned by
the owner of the ground. See LA. CIV. CODE art. 463.
(2)
No Unity of Ownership: Unlike buildings and standing timber,
which are (separate) immovables when there is no unity of
ownership, “other constructions” are movables when there is no
unity of ownership. See LA. CIV. CODE art. 464, cmt. d.
Unharvested Crops and Ungathered Fruits
(1)
Unity of Ownership: Unharvested crops and ungathered fruits of
trees are component parts when there is unity of ownership. See
LA. CIV. CODE art. 463.
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(2)
f.
g.
No Unity of Ownership: Unlike buildings and standing timber,
which are (separate) immovables when there is no unity of
ownership, “unharves ted crops and ungathered fruits of trees” are
(like “other constructions”) movables when there is no unity of
ownership.
Integral Parts of Land and its Component Parts
(1)
Generally: A thing that is incorporated into an immovable in such a
way as to become an integral part of that immovable, is a
component part of that immovable. See LA. CIV. CODE art. 465.
(2)
Example: For example, building materials lose their separate identity
when they are used in the construction of a building, but they are
movables until actually incorporated into the immovable. See LA.
CIV. CODE art. 472.
Component Parts of Buildings and Other Constructions: Permanent
attachments to buildings and other constructions are component parts
thereof. See LA. CIV. CODE art. 466. Article 466 contains two paragraphs
which set forth different tests for determining when a thing is permanently
attached to a building or other construction. See Equibank v. Internal
Revenue Service, 749 F.2d 1176 (5th Cir. 1985); but see Prytania Park
Hotel, Ltd. v. General Star Indemn. Co., 179 F.3d 169 (5th Cir. 1999)
(test is conjunctive rather than disjunctive).
(1)
Paragraph One–Installations
(a)
Generally: Paragraph 1 of article 466 provides that
installations permanently attached to a building or other
construction are its component parts, for example,
plumbing, heating, cooling, and electrical installations. See
LA. CIV. CODE art. 466, para. 1.
(b)
Equibank Interpretation: The Equibank decision
interpreted this paragraph. The question in Equibank was
whether a chandelier was an electrical installation.
Resolution of the question, according to the court, should
be determined by an objective test: societal expectations
and prevailing ideas in society. The court then determined
that the prevailing idea in today’s society is that
installations requiring special expertise and knowledge are
part of the building and that a chandelier falls into this
category. Thus, the court held the chandelier to be an
electrical installation, a component part of the building.
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(2)
h.
i.
Paragraph Two–Permanent Attachments: Paragraph 2 of article
466 furnishes a definition of permanent attachments. A thing is
permanently attached if it cannot be removed without substantial
damage to itself or to the immovable to which it is attached. See
LA. CIV. CODE art. 466, para. 2.
Immovables by Declaration: Owners may “declare” and register things such
as appliances, farm equipment, and machinery as component parts of an
immovable. See LA. CIV. CODE art. 467. Four conditions must be met:
(1)
Unity of Ownership : The owner of the immovable must own the
machinery, appliance, or equipment which is to become a
component part. See LA. CIV. CODE art. 467.
(2)
Immovable is Not a Home: The immovable may not be a private
residence. See LA. CIV. CODE art. 467.
(3)
Component Services Immovable: The component part must be
placed on the immovable for its “service and improvement.” See
LA. CIV. CODE art. 467.
(4)
Declaration Filed for Registry: The declaration must be filed for
registry in the conveyance records of the parish where the
immovable is located. See LA. CIV. CODE art. 467.
Deimmobilization of a Component Part: A component part of an immovable
can be deimmobilized (that is, converted from an immovable into a movable)
in three ways. See LA. CIV. CODE art. 468.
(1)
(2)
Damaged
(a)
Generally: When the component part is so damaged or
deteriorated that it can no longer serve the use of the
immovable, it is deimmobilized. See LA. CIV. CO D E art.
468.
(b)
Detachment for Repair: Materials separated from a
building for repair with the intention of returning them are
not deimmobilized. See LA. CIV. CODE art. 472. Such
things remain immovable. Id.
Transfer and Delivery: When the owner of the immovable:
(a)
Transfer: Executes an act translative of ownership, and
(b)
Deliver: Delivers the component part to an acquirer, and
(c)
Good Faith: The acquirer’s in good faith. See LA. CIV.
CODE art. 468.
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(3)
3.
II.
Detachment and Removal: When, in the absence of rights of third
persons, the owner of the immovable detaches or removes the
component part. See LA. CIV. CODE art. 468.
Movables
a.
Catch-All Classification: Anything that is not immovable is movable. See
LA. CIV. CODE art. 475.
b.
Movables by Anticipation
(1)
Generally: Unharvested crops or ungathered fruits owned by, or
encumbered by a security interest held by, someone other than the
landowner are “movables by anticipation.” See LA. CIV. CODE art.
474.
(2)
Method: The owner of land can mobilize by anticipation crops or
fruits that belong to him by an act translative of ownership or by
granting a security interest. See LA. CIV. CODE art. 474.
ACCESSION
A.
Generally: Ownership of a thing includes by accession everything it produces or is united
with it, subject to certain exceptions. See LA. CIV. CODE arts. 482-516.
B.
Fruits
1.
Owner’s Rights to Fruits: The owner of a thing acquires the ownership of its natural
and civil fruits in the absence of the rights of other persons. See LA. CIV. CODE art.
483.
a.
“Fruits” Defined: Fruits are things derived from another thing without
diminishing its substance. See LA. CIV. CODE art. 551. (Contrast
“products”.)
b.
Apportionment of Fruits
(1)
Natural Fruits: One who is entitled to natural fruits during a
particular period acquires ownership of such natural fruits gathered
during this period. See LA. CIV. CODE arts. 489 & 555.
(2)
Civil Fruits: One who is entitled to civil fruits during a particular
period acquires ownership of any civil fruits that accrue during this
period. See LA. CIV. CODE arts. 489 & 556.
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2.
Possessor’s Rights to Fruits and Products
a.
Fruits
(1)
“Possessor” Defined: Who is a possessor? See Louisiana
Acquisitive Prescription Outline.
(2)
Good Faith Possessor
(a)
(b)
(3)
b.
Defined: A possessor in good faith is one who possesses
by virtue of an act translative of ownership and who does
not know of any defects. See LA. CIV. CODE art. 487.
i)
Termination of Good Faith: He ceases to be in
good faith when these defects are made known to
him or an action is instituted against him by the
owner for the recovery of the thing. See LA. CIV.
CODE art. 487.
ii)
Contrast Definition in Context of Acquisitive
Prescription: Contrast the definition of “good faith”
for purposes of acquisitive prescription. See LA.
CIV. CODE art. 487, cmt. b; id. art. 3480; id. art.
3480, cmts. b-c. In the acquisitive prescription
context, just-title is a distinct requirement. See id.
art. 487, cmts. b-c.
Rights of Good Faith Possessor
i)
Ownership: A good faith possessor owns the fruits
that he has gathered.
ii)
Right to Reimbursement: A good faith possessor
does not own ungathered fruits, but he is entitled
to reimbursement of expenses for ungathered
fruits. See LA. CIV. CODE art. 487.
Bad Faith Possessor: A possessor in bad faith must restore the
fruits he has gathered (or their value), subject to his claim for
reimbursement of expenses. See LA. CIV. CODE art. 486.
Products
(1)
Distinguished from “Fruits”: Unlike fruits, products result in a
diminution of a thing (that is, products are nonrenewable
resources). See LA. CIV. CODE art. 488.
(2)
Ownership: Products belong to the owner. See LA. CIV. CODE art.
488.
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LOUISIANA PROPERTY LAW
(3)
C.
Reimbursement Rights: A possessor in good faith–but not one in
bad faith–has the right to reimbursement for expenses for products
derived from the thing. See LA. CIV. CODE art. 488.
Accession in Relation to Immovables
1.
Generally: Unless otherwise provided by law, the ownership of a tract of land carries
with it the ownership of everything that is directly above or under it. See LA. CIV.
C O D E art. 490; see generally id. arts. 490-506. The following accession rules
govern when the owner of a tract of land potentially does not own something
directly above or under it.
2.
Ownership
a.
Ownership of Improvements: The Civil Code permits separate ownership
of improvements, namely, buildings other constructions permanently
attached to the ground, standing timber, and, unharvested crops and
ungathered fruits. See LA. CIV. CODE art. 491 & 493.
(1)
Proving Separate Ownership: Proving separate ownership of the
things listed above turns on the person against whom the claim is
made.
(a)
Claims Against Owner of Ground: If the claim is made
against the person who owned the ground at the time the
improvements were made, the builder must prove that the
landowner consented to the improvements. If the
landowner did not consent to the improvements, then the
improvements belong to the landowner. See LA. CIV.
CODE art. 493, para. 1.
(b)
Claims Against Third Party: If the claim is made against a
third party, the builder must prove:
i)
Consent of Owner: Consent of the landowner.
ii)
Filing: Timely filing of instrument evidencing
separate ownership in the conveyance records of
the parish in which the immovable is located. See
LA. CIV. CODE art. 491. In the absence of such an
instrument, third persons relying on the public
records are entitled to assume that these things
are component parts of the ground. See LA. CIV.
CODE art. 491, cmt. e.
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LOUISIANA PROPERTY LAW
(2)
b.
3.
Right of Separate Owner to Remove Improvements
(a)
Right to Remove: When the separate owner of
improvements no longer has the right to keep them on the
land of another, he or she may remove them subject to his
or her obligation to restore the property to its former
condition. See LA. CIV. CODE art. 493, para. 2.
(b)
Failure to Remove: If the separate owner does not remove
them within 90 days after written demand, the landowner
acquires ownership of the improvements and owes nothing.
See LA. CIV. CODE art. 493, para. 2.
(c)
As Between Spouses: When buildings, other constructions
permanently attached to the ground, or plantings are made
on the separate property of a spouse with community
assets or with separate assets of the other spouse, and
when such improvements are made on community property
with the separate assets of a spouse, this Article does not
apply. See L A . CIV. CODE art. 493, para. 3; see Louisiana
Community Property Outline.
Ownership of Article 465-466 Component Parts
(1)
Generally: Unlike “improvements,” other component parts and
integral parts under articles 465 and 466 belong to the owner of the
immovable. See LA. CIV. CODE art. 493.1.
(2)
Article 465-466 Component Parts Incorporated by Others With the
Landowner’s Consent
(a)
Installer May Remove: If incorporated with the immovable
owner’s consent, the installer of the thing may remove
them subject to the obligation of restoring the immovable.
See LA. CIV. CODE art. 495.
(b)
If Installer Does Not Remove: If not removed after
demand, the owner of the immovable may have them
removed at the installer’s expense or pay and keep. See
LA. CIV. CODE art. 495.
(c)
Third Parties: Claims against third persons are subject to
the public records doctrine. See LA. CIV. CODE art. 498.
Claims: One who has lost the ownership of a thing to the owner of an immovable
may have a claim against him or a third person in accordance with the following
13
LOUISIANA PROPERTY LAW
provisions. See LA. CIV. CODE art. 493.2. Note that any claims against third
persons are subject to the public records doctrine. See LA. CIV. CODE art. 498.
a.
Constructions by Landowner With Materials of Another: When the owner
of an immovable makes on it constructions, plantings, or works with
materials of another, he may retain them, regardless of his good or bad faith,
on reimbursing the owner of the materials their current value and repairing
the injury that he may have caused to him. See LA. CIV. CODE art. 494.
b.
Constructions by Possessors
(1)
(2)
III.
Good Faith Possessors: When constructions, plantings, or works are
made by a possessor in good faith, the owner of the immovable
may not demand their demolition and removal. He is bound to keep
them and at his option to pay to the possessor either:
(a)
Cost: The cost of the materials and the workmanship; or
(b)
Current Value: Their current value; or
(c)
Enhanced Value: The enhanced value of the immovable.
See LA. CIV. CODE art. 496.
Bad Faith Possessors: When constructions, plantings, or works are
made by a bad faith possessor, the owner of the immovable may
either:
(a)
Demand Demolition: Demand their demolition and removal
at the expense of the possessor; and, in addition claim
damages for the injury that he may have sustained. See
LA. CIV. CODE art. 497.
(b)
Keep and Pay: Keep them and pay at his option either:
i)
Current Value: Current value of the materials and
the workmanship; or
ii)
Enhanced Value: The enhanced value of the
immovable. See LA. CIV. CODE art. 497.
TRANSFER OF OWNERSHIP
A.
Immovables
1.
When Effective As Between Parties: Immovables are transferred as between the
parties when they have confected a written agreement. See LA. CIV. CODE art. 517.
2.
When Effective As to Third Parties: Immovables are transferred as to third parties
when the instrument of conveyance is filed into the public records. See LA. CIV.
CODE art. 517; id. art. 2447; LA. REV. STAT . ANN. § 9:2756
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LOUISIANA PROPERTY LAW
B.
C.
Movables
1.
Generally: Ownership of a movable is transferred voluntarily by a contract between
the owner and a transferee purporting to transfer ownership. See L A . C IV. CODE
art. 518.
2.
When Effective: The transfer is effective between the owner and the transferee
according to their agreement. The transfer affects third parties when possession of
the movable has been delivered to the transferee. See LA. CIV. CODE art. 518. Two
consequences of this rule are spelled out in the article.
a.
Effect on Subsequent Transferees: If X sells a movable thing to Y but does
not deliver, then X sells the same thing to Z and does deliver, Z owns the
thing if he or she was in good faith, because the transfer by X to Y was not
effective against Z.
b.
Effect on Creditors: If M sells a movable thing to N but does not deliver,
creditors of M can seize the thing while it remains in M’s possession,
because the transfer by M to N is not effective against M’s creditors, who
are third parties to that transfer.
The Bona Fide Purchaser Doctrine
1.
Lost and Stolen Things
a.
Rule: If a thing is lost or stolen, the person having possession of it cannot
transfer its ownership to another. See LA. CIV. CODE art. 521.
(1)
“Stolen” Defined: The word “stolen” has its own definition in this
context.
(a)
Transfer Without Consent: “Stolen” means that the true
owner did not consent to the possession by another. See
LA. CIV. CODE art. 521.
(b)
Not Fraud: “Stolen” does not mean that the true owner
voluntarily transferred ownership to another as a result of
fraud. See LA. CIV. CODE art. 521.
(2)
Example: Thus, if O loses a thing and F finds it and then sells the
thing to B , O will win because of article 521. The same result
obtains if F steals the thing from O.
(3)
Role of Acquisitive Prescription: The rule of article 521 is subject
to the laws of acquisitive prescription.
(4)
Reimbursement Upon Recovery: When the owner is able to
recover the lost or stolen thing from the transferee, the owner must
reimburse the transferee his purchase price if the transferee bought
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LOUISIANA PROPERTY LAW
the thing in good faith from a merchant who customarily sells such
things. See LA. CIV. CODE art. 524.
b.
2.
3.
IV.
Exception–Legal Sale: If a lost or stolen thing has been sold by authority of
law, then the person to whom the thing was sold by authority of law will
prevail against the former owner. See LA. CIV. CODE art. 524. No
reimbursement is due to any party.
Vices of Consent: If an owner of a thing transfers ownership to a transferee in a
transaction tainted with a vice of consent, and the transferee then transfers
ownership to a third-party transferee, the third-party transferee gets ownership of
the thing if he is in good faith and has paid fair value for the thing. See LA. CIV.
CODE art. 522.
a.
“Good Faith”: Good faith exists unless the third party “knows, or should
have known, that the transferor was not the owner.” See LA. CIV. CODE
art. 523.
b.
Fraud as a Vice of Consent: Fraud is expressly excluded from the category
of lost and stolen things regulated by article 521. Fraud is covered by article
522, since fraud is one of the vices of consent.
(1)
Example: Thus, if S sells his ring to T on credit, because T
convinces S that T is really X , a rich woman, and if T thereafter
sells the ring to U, U will gets ownership over S.
(2)
Vices of Consent–Generally: Vices of consent are the subject of
Louisiana Civil Code articles 1948-1965.
Registered Movables: The law is unclear. Under the likely applicable case law, the
relative innocence/negligence of the two parties is weighed, and ownership is
awarded to the less negligent party.
CO-OWNERSHIP
A.
B.
Generally: Ownership of the same thing by two or more persons is “ownership in indivision.”
See LA. CIV. CODE art. 797.
1.
Presumption of Equality: In the absence of other provisions of law or juridical act,
the shares of all co-owners are presumed to be equal. See LA. CIV. CODE art. 797.
2.
Comparative Note: Similar to the common-law principle of “tenancy in common.”
Rights and Duties of Co-Owners
1.
Fruits & Products: If fruits or products are produced by one co-owner, then all coowners share the fruits and products of the co-owned thing in proportion to their
ownership, after deduction of the cost of production. See LA. CIV. CODE art. 798.
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LOUISIANA PROPERTY LAW
2.
Use and Management of Co-Owned Thing
a.
b.
Generally: Co-owners may use and manage the co-owned thing:
(1)
By Agreement: According to their agreement. See LA. CIV. CODE
art. 801.
(2)
When No Agreement: When there is no agreement, the use and
management of a co-owned thing is in accordance with the
following principles:
(a)
By Destination: According to the destination of the thing.
(However, on co-owner cannot prevent another co-owner
from making such use of it.) See LA. CIV. CODE art. 802.
(b)
By Court Order: When partition is not available and the coowners cannot agree on the use or management of the coowned thing, a court may determine its use or management
upon petition by a co-owner. See LA. CIV. CODE art. 803.
Alienation
(1)
Of Share: A co-owner has freedom of disposition as regards his
share of the co-owned thing. See LA. CIV. CODE art. 805.
(2)
Of Co-Owned Thing: All the co-owners must consent to a lease,
alienation, encumbrance, substantial alteration, or substantial
improvement of the entire co-owned thing. See LA. CIV. CODE
arts. 805.
3.
Right to Reimbursement of Expenses: A co-owner is entitled to reimbursement for
necessary expenses and for expenses for ordinary maintenance and repairs, subject
to a reduction commensurate with the value of that co-owner’s exclusive enjoyment.
See LA. CIV. CODE art. 806.
4.
Substantial Alterations and Improvements
a.
Generally: Substantial alterations or substantial improvements to the thing
held in indivision may be undertaken only with the consent of all the coowners. See LA. CIV. CODE art. 804.
b.
When a Co-Owner Makes Improvements Without Consent
(1)
Improvements Consistent With the Use of the Property: When
substantial alterations or improvements are made to co-owned
property that are consistent with the use of the property, the coowners may not demand their demolition and removal. They are
bound to keep them and at their option to pay to the “improver”
either:
17
LOUISIANA PROPERTY LAW
(2)
C.
(a)
Cost: The cost of the materials and the workmanship; or
(b)
Current Value: Their current value; or
(c)
Enhanced Value: The enhanced value of the immovable.
See LA. CIV. CODE arts. 804 & 496.
Improvements Inconsistent With the Use of the Property: When
substantial alterations or improvements are made to co-owned
property that are inconsistent with the use of the property, the coowners may either:
(a)
Demand Demolition: Demand their demolition and removal
at the expense of the “improver”; and, in addition claim
damages for the injury that he may have sustained. See
LA. CIV. CODE arts. 804 & 497.
(b)
Keep and Pay: Keep them and pay at their option either:
i)
Current Value: Current value of the materials and
the workmanship; or
ii)
Enhanced Value: The enhanced value of the
immovable. See LA. CIV. CODE arts. 804 & 497.
Partition of Co-Owned Property
1.
Right to Partition: No one can be compelled to hold property in indivision with
another person unless the contrary (a) has been agreed to, or (b) is provided for by
law. See LA. C IV. C ODE art. 807. The means is to effect division of co-owned
property is a “partition” of the property.
2.
Excluding Partition: Exclusion of partition:
3.
a.
Time: Partition can be excluded by agreement for up to fifteen years. See
LA. CIV. CODE art. 807.
b.
Indispensability: If the use of the thing held in indivision is indispensable for
the enjoyment of another thing owned by one of the co-owners, partition is
excluded. See LA. CIV. CODE art. 808.
Modes of Partition
a.
Voluntary Partition
(1)
Generally: All co-owners can agree on the mode of partition, or in
the absence of such an agreement, a co-owner may demand
judicial partition. See LA. CIV. CODE art. 809.
18
LOUISIANA PROPERTY LAW
(2)
b.
Judicial Partition
(1)
V.
Recission of Extrajudicial Partition: An extradjudicial partition may
be rescinded on account of lesion if the value of the part received
by a co-owner is less by more than one-fourth of the fair market
value of the portion that he should have received. See L A . C IV.
CODE art. 814.
Types
(a)
Partition in Kind: If the thing can be divided into lots of
nearly equal value and the total value of the individual lots
is not significantly lower that the value of the entire
property, the court shall decree a partition in kind. Expert
makes a proposed division and the parties draw lots. See
LA. CIV. CODE art. 810.
(b)
Partition by Sale of Thing: When the thing cannot be
partitioned in kind, then it is partitioned by licitation (public
auction) or by private sale, and the proceeds distributed to
the co-owners. See LA. CIV. CODE art. 811.
(2)
Effect of Partition on Real Rights: When a thing held in indivision
is partitioned in kind or by licitation, a real right burdening the thing
is not affected. See LA. CIV. CODE art. 812.
(3)
Imprescriptible: The action for partition is imprescriptible (that is, no
liberative prescription). See LA. CIV. CODE art. 817.
DISMEMBERMENTS OF OWNERSHIP–SERVITUDES GENERALLY
A.
Ownership Distinguished
1.
2.
B.
Rights of Ownership
a.
Usus: The right to use and enjoy the property.
b.
Fructus: The right to the fruits produced from the property.
c.
Abusus: The right to alienate and encumber the property.
Full Ownership: Full ownership includes all three elements.
Servitudes: Servitudes are rights in things less than full ownership.
1.
Types: There are two kinds of servitudes: personal servitudes and predial servitudes.
See LA. CIV. CODE art. 533.
a.
Predial Servitudes: A predial servitude is a charge on a servient estate for
the benefit of a dominant estate. See LA. CIV. CODE art. 646.
19
LOUISIANA PROPERTY LAW
b.
2.
VI.
Personal Servitudes: A personal servitude is a charge on a thing for the
benefit of a person. The personal servitudes are “usufruct,” and the rights
of habitation and of use. See LA. CIV. CODE art. 534.
Distinguishing Types: Is the servitude personal or predial? If the act creating the
servitude does not state that it is for the benefit of another estate or for the benefit
of a particular person, then:
a.
Advantage Conferred to Estate: If an advantage is conferred to an estate,
the servitude is presumed to be predial. See LA. CIV. CODE art. 733.
b.
Advantage Conferred to Person: If a right is granted in favor of a person,
the servitude is not considered predial unless it is acquired by an owner of
an estate as owner for oneself, one’s heirs, and assigns. See LA. CIV. CODE
art. 734.
PERSONAL SERVITUDES
A.
Right of Use
1.
2.
B.
Generally: The “right of use” is a personal servitude that confers a specified use of
an estate less than full enjoyment. See LA. CIV. CODE art. 639. The right may be
established in favor of a natural person or a legal entity. See LA. CIV. CODE art.
641. Right of use is governed by rules of usufruct and predial servitude to the extent
that they are compatible with a right of use. See LA. CIV. CODE art. 645.
a.
Alienation: The right of use is transferable unless prohibited by law or
contract. See LA. CIV. CODE art. 643.
b.
Termination: A right of use does not terminate upon the death of a natural
person or at the dissolution of any other entity having the right unless the
contrary is provided by law or contract. See LA. CIV. CODE art. 644.
Distinguishing from Usufruct: If the act purporting to create a right of use exhausts
the utility of the property, then it is a usufruct rather than a right of use.
Right of Habitation
1.
Generally: The “right of habitation” is the nontransferable real right of a natural
person to dwell in the house of another. See LA. CIV. CODE art. 630.
2.
Establishment and Extinction: The right of habitation is established and extinguished
in the same manner as the right of usufruct. See LA. CIV. CODE art. 631. Thus, the
right terminates at the death of the right holder and is neither transferable, heritable
nor alienable. See LA. CIV. CODE art. 637-638.
3.
Duties of Right Holder: The right holder must use the property as a prudent
administrator and deliver the property to the owner in the condition in which he
received it, ordinary wear and tear excepted. See LA. CIV. CODE art. 635.
20
LOUISIANA PROPERTY LAW
C.
Usufruct
1.
Generally: “Usufruct” is a real right of limited duration on the property of another.
See LA. CIV. CODE art. 535. The holder of the usufruct–the “usufructuary”–has the
right to use the property and to enjoy its fruits, and certain obligations to the owner
of the thing (the “naked owner”).
a.
Comparative Note: A usufruct is analogous to the common law “life
estate.”
b.
Nature: A usufruct is an incorporeal thing. It is movable or immovable
according to the nature of the thing upon which the right exists. See LA.
CIV. CODE art. 540. Usufruct may be established in favor of a natural
person or legal entity. See LA. CIV. CODE art. 549.
c.
Origin of Usufruct: Usufruct can be conventional (created by juridical act)
or legal (created by operation of law). Examples of legal usufructs include
the parental usufruct over the property of minor children and the surviving
spouse usufruct. See, e.g., LA. CIV. CODE arts. 223 & 890.
d.
Multiple Usufructuaries
e.
(1)
Successive Usufructs: Successive usufructuaries are allowed if the
usufructuary exists or is “conceived at the time” of creation.
Example: usufruct to A for life, then to B for life, naked ownership
to C. See LA. CIV. CODE art. 546.
(2)
Joint or Divided Usufruct: A usufruct may be granted to two or
more persons in either undivided shares or in divided shares. See
LA. CIV. CODE arts. 541.
(a)
Unidivided Shares: If granted in undivided shares, the
termination of a usufructuary’s interest inures to the
benefit of the survivors. See LA. CIV. CODE art. 547. This
is the default rule.
(b)
Divided Shares: If the usufruct is granted in divided shares,
the termination of a usufructuary’s interest inures to the
benefit of the naked owner.
Partition and Usufruct
(1)
General Rule: Neither a usufructuary nor a naked owner can
compel a partition of the dismembered property, except that
usufructuaries of the same interest may partition their usufruct and
naked owners of the same interest may partition their naked
ownership. See LA. CIV. CODE art. 543.
21
LOUISIANA PROPERTY LAW
(2)
2.
Exception–Cooperative Combination: A person having a share in
full ownership may demand partition. See LA. CIV. CODE art. 543.
Thus, usufructuary and a naked owner whose interests are
complementary can combine their respective interests and be
treated as a full owner for purposes of provoking a partition of the
property. Id.
Rights and Duties of Usufructuary
a.
Generally: The nature of the right of usufruct hinges on whether the
usufruct is over a “consumable” thing or over a “nonconsumable” thing. See
LA. CIV. CODE art. 535.
b.
Usufruct Over Consumable Things
(1)
(2)
c.
“Consumables” Defined: Consumables are things that cannot
normally be used without their substance being changed, for
example, money, food, and stocks of merchandise. See LA. CIV.
CODE art. 536.
(a)
Bonds: Bonds payable to the bearer or to the usufructuary
are consumables.
(b)
Bank Deposits: Matured credits for the payment of a sum
of money, such as matured certificates of deposit, are
consumables.
(c)
Promissory Notes: Matured promissory notes, or those
payable on demand, are consumables.
Usufructuary as Owner : The usufructuary becomes the owner of
the consumable. See LA. CIV. C O D E art. 538. The usufructuary
may consume, alienate, or encumber them as he sees fit, but he
must either:
(a)
Pay: Pay the naked owner when the usufruct terminates
the value of the consumed items at commencement, or
(b)
Replace: Replace them with like things of the same quality
and quantity. See LA. CIV. CODE art. 538.
Usufruct Over Nonconsumables
(1)
Generally
(a)
“Nonconsumables” Defined: Nonconsumables are things
that can be used without their substance being altered even
though natural deterioration may gradually occur, for
22
LOUISIANA PROPERTY LAW
example, shares of stock, land, a house, animals, vehicles,
or furniture. See LA. CIV. CODE art. 537.
(b)
(2)
General Rights and Duties of Usufructuary: The
usufructuary of nonconsumables “has the right to possess
them and to derive the utility, profits, and advantage that
they may produce, under the obligation of preserving their
substance.” See LA. CIV. CODE art. 539.
Right to Fruits
(a)
Defined: “Fruits” are things produced or derived from
another thing without diminution of its substance. See LA.
CIV. CODE art. 551. Types of fruits include the following:
i)
Natural: Fruits that are derived from nature. Id.
ii)
Civil: Revenues such as royalties, interest, or
dividends. Id.
(b)
Usufructuary’s Right to Fruits: Usufructuary is entitled to
the fruits. See LA. CIV. CODE art. 550. The right to the
fruits begins on the effective date of the usufruct. See LA.
CIV. CODE art. 554.
(c)
Termination: Termination of usufruct and the right to fruits.
(d)
i)
Natural Fruits: If the natural fruits are not severed
by the time the usufruct terminates, they will inure
to the benefit of the naked owner. See LA. CIV.
CODE art. 555.
ii)
Civil Fruits: Civil fruits accrue day to day. Civil
fruits that accrue during the term of the usufruct
become the property of the usufructuary even if
the fruits cannot be realized until after termination.
See LA. CIV. CODE art. 556.
Special Problems
i)
Stock
a)
23
Cash Dividends and Voting: The
usufructuary has the right to receive cash
dividends declared during the usufruct and
to vote the stock. See LA. CIV. CODE art.
552; id. art. 553.
LOUISIANA PROPERTY LAW
ii)
b)
Stock Dividends: Stock dividends, splits,
redemptions, and liquidating dividends go
to the naked owner subject to the
usufruct. See LA. CIV. CODE art. 552.
c)
Stock Warrants: Stock warrants and
subscription rights belong to the naked
owner free of the usufruct. See LA. CIV.
CODE art. 552.
Trees
iii)
a)
Generally: Ordinarily, usufruct of land
does not include the right to cut down
trees, because trees are generally not
fruits.
b)
Trees for Own Use: The usufructuary
may remove trees for his own use on the
property. See LA. CIV. CODE art. 560.
c)
Timberlands: When the usufruct includes
timberlands, the usufructuary may retain
proceeds of timber operations so long as
he manages the timberlands as a prudent
administrator. See LA. CIV. CODE art.
562. In Kennedy v. Kennedy, 699 So. 2d
351 (La. 1997) (on rehearing), the
Louisiana Supreme Court defined
“timberlands” as land capable of
producing timber in paying quantities, and
permitted the usufructuary to initiate
farming operations on property. On
rehearing, the court ruled that the
usufructuary could clear-cut a portion of
the land, because clear cutting the only
reasonable way to convert the land into
timberlands.
Animals
a)
24
Generally: Herds of animals are proper as
usufruct property. The usufructuary must
manage as a “prudent administrator.” See
LA. CIV. CODE art. 599.
LOUISIANA PROPERTY LAW
iv)
(3)
b)
Death of Animals: If some of the herd
dies, they must be replaced from the
increase of the herd. If the entire herd
dies without the usufructuary’s fault, the
naked owner bears the loss. See LA. CIV.
CODE art. 599.
c)
Alienation of Herd: The usufructuary may
sell or trade the herd but at termination
must pay the naked owner the value of
the herd when sold. Note that disposal is
subject to the obligation to act as a
prudent administrator and that the naked
owner can demand investment of the
proceeds under article 618. See LA. CIV.
CODE art. 600.
Mortgages
a)
Post-Usufruct Mortgage: If a mortgage is
put on the property by the naked owner
after the usufruct has been created,
foreclosure cannot prejudice the usufruct.
See LA. CIV. CODE art. 620, para. 2.
b)
Pre-Usufruct Mortgage: If the mortgage
was on the property before
commencement, foreclosure will be
allowed and the property can be sold free
of the usufruct. See LA. CIV. CODE art.
620. The usufructuary may discharge the
indebtedness and claim reimbursement,
without interest, at termination.
Right to Make Improvements
(a)
With Consent of Naked Owner: Usufructuary may make
improvements and alterations to property at his cost with
the naked owner’s written consent. See L A . CIV. CODE
art. 558.
(b)
Without Consent of Naked Owner: If the naked owner
withholds consent, the usufructuary may make, at his own
cost, any improvements that a prudent administrator would
make, after giving notice to the naked owner, and receiving
court approval. See LA. CIV. CODE art. 558.
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(4)
(5)
Right to Alienate Usufruct
(a)
Generally: The usufructuary can alienate, encumber, or
lease his right of usufruct. See LA. CIV. CODE art. 567.
(b)
Limitation: Such contracts cease at the end of the usufruct.
This is similar to the common-law life estate pur autre vie).
While usufruct is transferable inter vivos, it is not heritable.
See LA. CIV. CODE art. 607 (terminates upon death).
Right to Alienate Property
(a)
Generally: Nonconsumables may not be disposed of by the
usufructuary without permission of the naked owner,
unless the right to dispose is expressly granted. See LA.
CIV. CODE art. 568.
(b)
Creation of Predial Servitudes: A usufructuary may not
establish on the estate of which he has the usufruct any
charges in the nature of predial servitudes. See LA . CIV.
CODE art. 711. (The usufructuary of course may convey
a personal right of enjoyment to another for the term of the
usufruct. See id. cmt. b.)
(c)
Exception: The usufructuary may dispose of corporeal
nonconsumable movables that “are gradually and
substantially impaired by use, wear, or decay” as long as
he acts as a prudent administrator. See LA. CIV. CODE art.
568.
i)
Usufruct Over Proceeds: The usufruct attaches to
the proceeds. The naked owner will be entitled to
the value of the property as of the time it was sold
but he is not paid until the usufruct terminates. See
LA. CIV. CODE art. 568.
ii)
No Duty to Dispose of Impaired Property: The
usufructuary has no duty to dispose of impaired
corporeal movables, but rather, may “restore them
to the owner in the state in which they may be at
the end of the usufruct.” See LA. CIV. CODE art.
569. If the things are “entirely worn out by normal
use,” he is even relieved of this obligation. Id.
26
LOUISIANA PROPERTY LAW
d.
Duties of Usufructuary
(1)
Duty to Make Inventory: Usufructuary must have an inventory
made. If usufructuary fails to do so, naked owner may prevent the
usufructuary’s entry into possession. See LA. CIV. CODE art. 570.
(2)
Duty to Give Security
(a)
Generally: The usufructuary may be required to give
security in an amount of the value of the property subject
to the usufruct. See LA. CIV. CODE art. 571-572.
(b)
Exceptions: This duty is not applicable to legal
usufructuaries or to sellers or donors who have reserved a
usufruct. See LA. CIV. CODE art. 573.
(3)
Duty to Care for Property: The usufructuary is liable for losses if
he fails to act as a prudent administrator. The usufructuary must
exercise the care that a careful person would exercise in the
administration of his or her own affairs. See LA. CIV. CODE art.
576. The usufructuary is liable for losses resulting from his “fraud,
default, or neglect.” Id.
(4)
Duty to Make Repairs
(a)
Ordinary Repairs: The usufructuary must make all
“ordinary” repairs. See LA. CIV. CODE art. 577. The naked
owner may compel the usufructuary to make these repairs.
See LA. CIV. C ODE art. 579, para. 1. However, the
usufructuary may relieve himself of this obligation by
abandoning the usufruct. See LA. CIV. CODE art. 582.
(b)
Extraordinary Repairs
i)
Distinguishing “Ordinary” from “Extraordinary”
Repairs: A reconstruction of the whole or of a
substantial part of the property is extraordinary; all
other repairs are ordinary. See LA. CIV. CODE art.
578.
ii)
Generally: The naked owner is responsible for
extraordinary repairs, but the naked owner cannot
be compelled to make them. See LA. CIV. CODE
art. 577, para. 2; id. art. 579, para. 2. The
usufructuary can make these repairs if he chooses
and receive compensation at termination of the
27
LOUISIANA PROPERTY LAW
usufruct (no interest allowed). See LA. CIV. CODE
art. 579.
iii)
(5)
3.
Duty to Pay Taxes: The usufructuary is responsible for all taxes
and annual charges. See LA. CIV. CODE art. 584.
Rights and Duties of Naked Owner (See LA. CIV. CODE arts. 603-606)
a.
b.
4.
Exception: The usufructuary must pay for
extraordinary repairs if caused by his fault. See
LA. CIV. CODE art. 577.
Rights of Naked Owner
(1)
Right to Alienate and Encumber: May alienate or encumber the
property subject to the usufruct.
(2)
Right to Grant Real Rights: May establish real rights if they can be
exercised without injury to the usufructuary.
Duties of Naked Owner
(1)
No Interference: May not interfere with the enjoyment of the
usufruct.
(2)
No Alterations: May not make alterations on the property.
However, the naked owner may restore damage or make repairs.
Termination of Usufruct
a.
When Usufruct Terminates
(1)
Generally
(a)
(b)
Natural Usufructuaries: A usufruct in favor of a natural
person terminates:
i)
Upon Death: Upon the death of the usufructuary,
even if the usufruct was given for a term of years.
Usufruct is not heritable. See LA. CIV. CODE art.
607.
ii)
Upon Expiration of Term or Occurrence of
Condition: A usufruct established for a term or
subject to a condition terminates upon the
expiration of the term or the happening of the
condition. See LA. CIV. CODE art. 610.
Juridical Usufructuaries : A usufruct in favor of a juridical
person (that is, a legal entity) terminates:
28
LOUISIANA PROPERTY LAW
(2)
i)
Thirty Years: At the end of thirty years. See LA.
CIV. CODE art. 608.
ii)
Upon Expiration of Term: Upon the expiration of
a specified term less than thirty years . See LA.
CIV. CODE art. 608.
iii)
Upon Termination of Entity: Upon the termination
of the juridical person (for example, upon
dissolution of a corporation or trust). See LA. CIV.
CODE art. 608.
Destruction of Property: Destruction of the property subject to the
usufruct.
(a)
Total Destruction: Permanent and total loss or destruction
of nonconsumables will terminate the usufruct. See LA.
CIV. CODE art. 613.
(b)
Loss Caused by Another: If, however, the loss is caused
by the fault of a third party, the usufruct attaches to a suit
for damages and ordinarily the usufructuary will be the
proper party to bring suit. Money received is subject to the
usufruct. See LA. CIV. C O D E art. 614. The naked owner
can then demand investment under article 618.
(3)
Mortgage Foreclosure: Foreclosure of a mortgage placed on the
property prior to the creation of the usufruct will result in
termination. See LA. CIV. CODE art. 620.
(4)
Change in Form of Property
(a)
Involuntary: When there is an involuntary conversion due
to the actions of third persons, the usufruct does not
terminate and all proceeds will be subject to the usufruct.
See LA. CIV. CODE art. 615. The naked owner can
demand investment of the proceeds under Civil Code
article 618.
(b)
Consensual Sale: If the property is sold, the usufruct
attaches to the proceeds unless the parties agree
otherwise. See LA. CIV. CODE art. 616. This article applies
when the usufructuary and the naked owner agree to sell
the property free of the usufruct. (The naked owner is, of
course, free to sell his interest and the usufruct does not
terminate.)
29
LOUISIANA PROPERTY LAW
(c)
b.
Insurance Proceeds
i)
Usufruct Attaches to Proceeds : When proceeds
are due because of the loss of the property, the
usufruct attaches to the proceeds. See LA. CIV.
CODE art. 617.
ii)
Separately Insured Interests: If the naked owner
or the usufructuary separately insures his or her
interest, then the proceeds belong to the insured
party. See LA. CIV. CODE art. 617.
iii)
Duty of Usufruct to Insure?: The usufructuary
may or may not have a duty to insure and this
should be controlled by the duty to be a prudent
administrator.
(5)
Prescription: Nonuse for ten years will extinguish the usufruct. See
LA. CIV. CODE art. 621.
(6)
Confusion: When the usufruct and the naked ownership are united
in the same person, the usufruct terminates by confusion. See LA.
CIV. CODE art. 622. Note that the two interests must be coordinate.
(7)
Abuse: Abuse of the property may result in termination. Abuse is
a serious violation of the obligation to preserve the substance of a
nonconsumable. Termination is not automatic. See LA. CIV. CODE
arts. 623-624.
(8)
Express Renunciation: Express written renunciation by the
usufructuary. See LA. CIV. CODE art. 626.
Effect of Termination
(1)
Nonconsumables: The usufructuary must deliver the property to the
naked owner, unless the property was permanently and totally
destroyed. If the usufructuary had the right to dispose of
nonconsumables, he must pay the value the thing had at the time of
disposal. See LA. CIV. CODE art. 628.
(2)
Consumables: The usufructuary must deliver things of the same
quantity and quality or the value they had at the commencement of
the usufruct. See LA. CIV. CODE art. 629.
30
LOUISIANA PROPERTY LAW
VII.
PREDIAL SERVITUDES
A.
Generally
1.
2.
“Predial Servitude” Defined: A predial servitude is a charge on a servient estate for
the benefit of a dominant estate. See LA. CIV. CODE art. 646.
a.
“Estate”: An estate is a distinct corporeal immovable. Tracts of land,
buildings, and standing timber are estates, but constructions other than
buildings are not, and hence are not susceptible of predial servitudes. See
LA. CIV. CODE art. 646, cmt. b.
b.
Nature: A predial servitude is classified as an “incorporeal immovable.” See
LA. CIV. CODE art. 646.
Types: Predial servitudes may be natural, legal, and conventional (or voluntary). See
LA. CIV. CODE art. 654.
a.
Natural Servitudes: Arise from the natural situation of estates. See id.
b.
Legal Servitudes: Imposed by law. See id.
c.
Conventional Servitudes: Established by juridical act, prescription or
destination of the owner. See id.
3.
Requirement of Benefit to a Dominate Estate: A benefit must exist to a dominant
estate. See LA. CIV. CODE art. 647. However, this benefit need not exist at the time
the servitude is created; a possible convenience or a future advantage suffices to
support a servitude. See LA. CIV. CODE art. 647.
4.
Requirement of Dual Estates
a.
Inseparability of Servitude and Dominant Estate
(1)
Generally: A predial servitude is inseparable from the dominant
estate and passes with it. See LA. CIV. CODE art. 650.
(2)
No Separate Alienation or Encumbrance: The right of using the
servitude cannot be alienated or encumbered separately from the
dominant estate. See LA. CIV. CODE art. 650.
b.
Charge Follows Servient Estate: The predial servitude continues as a charge
on the servient estate when ownership changes. See L A. CIV. CODE art.
650.
c.
Proximity of Estates Not Required: Neither contiguity nor proximity of
estates is required. It suffices that the two estates be so located as to allow
one to derive some benefit from the charge on the other. See L A . C IV.
CODE art. 648.
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d.
5.
B.
Nature of Real Obligation Imposed by Predial Servitude: The owner of the servient
estate is not required to do anything. His obligation is to abstain from doing
something on his estate or to permit something to be done on it. However, he may
be required by convention or by law to keep his estate in suitable condition for the
exercise of the servitude due to the dominant estate. See LA. CIV. CODE art. 651.
Natural Servitudes: Natural servitudes arise from the natural situation of estates. See LA.
CIV. CODE art. 654.
1.
C.
Requirement of Separate Ownership: The two estates must belong to
different owners. See LA. CIV. CODE art. 646, cmt. b. There can be no
servitude if the two estates belong in their entirety to the same owner; a coowner may have a servitude on an estate on which he is the sole owner.
Natural Drainage: An estate below is bound to receive the surface waters that flow
naturally from estate above unless the flow has been created by man. See LA. CIV.
CODE art. 655.
a.
Obligation of Servient Estate: Can not prevent the flow of water. See LA.
CIV. CODE art. 656.
b.
Obligation of Dominant Estate: Can not render the servitude more
burdensome. See LA. CIV. CODE art. 656.
2.
Estate Bordering on Running Water: Owner of an estate bordering on water may
use it as it runs. See LA. CIV. CODE art. 657.
3.
Estate Through Which Water Runs: The owner of an estate through which water
runs may use it, but he cannot stop it or give it another direction. He is bound to
return the water to its ordinary channel before it leaves his estate. See LA. CIV.
CODE art. 658.
Legal Servitudes: Legal servitudes are limitations on ownership established by law for the
benefit of the general public or particular persons. See LA. CIV. CODE art. 659.
1.
Limitations on Ownership
a.
Keeping Buildings in Repair: The owner of a building is bound to keep it in
repair so that it will not fall and cause damage to a neighbor or passerby.
See LA. CIV. CODE art. 660; see also LA. CIV. CODE arts. 661-662.
b.
Projections: A landowner may not build projections beyond the boundary of
his estate. See LA. CIV. CODE art. 663.
c.
Rain Drip from Roof: A landowner is bound to fix his roof so that rainwater
does not fall on the ground of his neighbor. See LA. CIV. CODE art. 664.
d.
Encroaching Buildings: When a landowner in good faith constructs a
building that encroaches on an adjacent estate and the owner of that estate
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LOUISIANA PROPERTY LAW
does not complain within a reasonable time after he knew or should have
known or complains only after the construction is substantially completed,
the court may allow the building to remain. The owner of the building
acquires a predial servitude on the land occupied by the building on payment
of compensation for value of servitude and other damages. See LA. CIV.
CODE art. 670.
2.
Common Enclosures
a.
Party Walls
(1)
Generally: The landowner who builds first has the right to rest half
of the wall on his or her neighbor’s land if the wall (1) is made of
solid masonry, (2) is at least as high as the first story, and (3) is not
more than 18 inches thick plus three inches of plastering. See LA.
CIV. CODE art. 673. Upon completion, the wall is a private wall.
See id. cmt. f.
(2)
Creating a Common Wall
(3)
(a)
Generally: Such a wall may become “common”
immediately if the neighbor pays one-half of its cost and at
a later time if the neighbor pays one-half of its then-current
value. See LA. CIV. CODE art. 674.
(b)
Presumption: A wall that separates adjoining buildings and
rests on two estates is presumed to be common up to the
highest point of the lower building. See LA. CIV. CODE art.
675.
Obligations of Co-Owners: The co-owners of a common wall share
expenses for necessary repairs in proportion to their interests. See
LA. CIV. CODE art. 678. A co-owner may be relieved of obligation
to pay for repairs by abandoning his right to use it in writing
(provided that there is no construction supported by the wall). See
LA. CIV. CODE art. 679.
b.
Common Fences: A fence on a boundary is presumed to be common. When
adjoining lands are not enclosed, a landowner may compel his neighbors to
contribute to the expense of making and repairing common fences only as
prescribed by local ordinances. See LA. CIV. CODE art. 685.
c.
Common Ditches: A ditch between two estates is presumed to be common
unless there is proof to the contrary. Adjoining owners are responsible for
the maintenance of a common ditch. See LA. CIV. CODE art. 686.
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LOUISIANA PROPERTY LAW
d.
3.
Plants
(1)
Common Plants: Trees, bushes, and other plants on a boundary line
are presumed to be common. See LA. CIV. CODE art. 687.
(2)
Removal of Boundary Plants: If a tree or other plant (whether
common or private) is on a boundary line, either landowner may
remove it at his expense if the tree interferes with enjoyment of his
property. See LA. CIV. CODE art. 687.
(3)
Separate Plants
(a)
Generally: If a tree is inside your property, you may do
with it as you please. If tree is on your neighbor’s property,
he has the right to do with it as he pleases.
(b)
Roots and Branches: However, a landowner may demand
that the roots and branches of a neighbor’s tree or plant
that extend onto and interfere with the enjoyment of his
property be trimmed at the neighbor’s expense. See LA.
CIV. CODE art. 688.
Right of Passage–Enclosed Estates
a.
Right of Passage for Indemnity: An owner of an estate that has no access
to a public road may claim a right of passage (for indemnity) over
neighboring property to the nearest public road. See LA. CIV. CODE art.
689.
(1)
Duty to Indemnify: The owner of the dominant estate must
indemnify his neighbor for the damage he causes. Id.
(2)
Extent Servitude: This servitude of passage is limited to the kind of
traffic that is “reasonably necessary” to use the enclosed estate.
See LA. CIV. CODE art. 690.
(3)
Construction of Road: The owner of the dominant estate may
construct a road as necessary (he, of course, must pay damages to
the owner of the servient estate). See LA. CIV. CODE art. 691.
(4)
Location of Passage
(a)
Generally: Shortest route to public road, where least
injurious to servient estate. See LA. CIV. CODE art. 692.
(b)
Relocation
i)
By Owner of Dominant Estate: The owner of the
dominant (enclosed) estate has no right to relocate
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LOUISIANA PROPERTY LAW
this servitude after it is fixed. See L A. CIV. CODE
art. 695 (first sentence).
ii)
(5)
D.
By Owner of Servient Estate: The owner of the
servient estate has the right to demand relocation
of the servitude to a more convenient place at his
own expense, provided that it affords the same
facility to the owner of the enclosed estate. See
LA. CIV. CODE art. 695 (second sentence).
Prescription: The right for indemnity against the owner of the
enclosed estate may be lost by prescription. The accrual of this
prescription has no effect on the right of passage. See LA. CIV.
CODE art. 696.
b.
Gratuitous Right of Passage: When in the case of partition, or a voluntary
alienation of an estate or part thereof, property alienated or partitioned
becomes enclosed, passage shall be furnished gratuitously by the owner
of the land on which the passage was previously exercised, even if it is not
the shortest route to the public road, and even if the act of alienation or
partition does not mention a servitude of passage. See LA. C IV. CODE art.
694.
c.
No Right of Passage: If an estate becomes enclosed due to voluntary act
of its owner, neither the owner nor his [universal] successors has the right
to passage. See LA. CIV. CODE art. 693. In LeBlanc v. Thibodeaux, 615
So. 2d 295 (La. 1993), the Louisiana Supreme Court held that article 693
does not apply to an estate enclosed when a servitude granted in a partition
prescribes. Such an estate is entitled to a right of passage for indemnity
under article 689.
Building Restrictions
1.
“Building Restrictions” Defined: Building restrictions are charges imposed by the
owner of an immovable pursuant to a general plan that governs building standards,
specified uses, and improvements. The plan must be feasible and capable of being
preserved. See LA. CIV. CODE art. 775. In the absence of a viable general plan, the
restrictions may be a valid predial servitude. See id. cmt. c.
2.
Nature of Building Restrictions: Building restrictions are incorporeal immovables and
real rights, and although not servitudes they are “likened” to predial servitudes. See
LA. CIV. CODE art. 777.
a.
Applicability of Predial Servitude Rules: Rules governing predial servitudes
govern building restrictions unless they are incompatible with the nature of
building restrictions. See LA. CIV. CODE art. 777.
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LOUISIANA PROPERTY LAW
b.
E.
Affirmative Duties Permitted: May impose affirmative duties reasonable
and necessary for the enforcement of the general plan and may be enforced
by mandatory and prohibitory injunctions. See LA. CIV. CODE art. 778-779.
3.
Establishing Building Restrictions: Building restrictions can only be established by
juridical act executed by the owner of an immovable, or by all of the owners of the
affected immovables. See LA. CIV. CODE art. 776.
4.
Terminating and Amending Building Restrictions
a.
Generally: Building restrictions be terminated or amended as provided in the
act, or by agreement of a specified percentage of owners (one-half if
restrictions in place for 15 years; two-thirds if restrictions in place for 10
years). See LA. CIV. CODE art. 780 (revised in 1999).
b.
Liberative Prescription: No suit for violation of a restriction may be brought
after two years of the commencement of a noticeable violation. After two
years, the immovable is freed of the restriction that has been violated. See
LA. CIV. CODE art. 781.
c.
Abandonment: Building restrictions terminate by abandonment of the whole
plan or by the abandonment of a particular restriction. See LA. CIV. CODE
art. 782.
5.
Interpreting Building Restrictions: Doubt as to the existence, validity, or extent of
building restrictions is resolved in favor of the unrestricted use of the immovable.
See LA. CIV. CODE art. 783.
6.
Louisiana Homeowners Association Act of 1999: For detailed provisions relating to
building restrictions for “residential planned communities,” see LA. REV. STAT . §§
9:1141.1-9:1141.9.
Conventional Servitudes
1.
Generally: Conventional servitudes may be established by an owner on his estate or
acquired for its benefit. See LA. CIV. CODE art. 697. They are established on, or for
the benefit of, distinct corporeal immovables. See LA. CIV. CODE art. 698.
a.
Governing Rules: The use and extent of such servitudes are regulated by
the title by which they are created, and, in the absence of such regulation,
by the default rules of the Civil Code. See LA. CIV. CODE art. 697.
b.
Examples: Examples of common conventional servitudes include support,
view, prohibition of view, light, prohibition of light, and passage. See LA.
CIV. CODE art. 699-705.
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LOUISIANA PROPERTY LAW
c.
Types: Types of conventional servitudes:
(1)
Affirmative or Negative
(a)
Generally: Conventional servitudes are classified as
affirmative (giving the owner of the dominant estate the
right to do something) or negative (restricting the owner of
the servient estate from doing something). See LA. CIV.
CODE art. 706.
(b)
Examples
(c)
(2)
Affirmative: Right of way, drain, and support. See
LA. CIV. CODE art. 706.
ii)
Negative: Prohibition of building and of the use of
an estate as a commercial or industrial
establishment. See LA. CIV. CODE art. 706.
Relevance: This distinction is relevant as to prescription of
nonuse.
Apparent and Nonapparent
(a)
Generally: Conventional servitudes may be apparent
(perceivable by exterior works) or nonapparent (no
exterior signs). See LA. CIV. CODE art. 707.
(b)
Examples
(c)
2.
i)
i)
Apparent: Servitudes evidenced by a roadway,
window in a common wall or an aqueduct. See
LA. CIV. CODE art. 707.
ii)
Nonapparent: Prohibition on building on an estate
or of building above a particular height. See LA.
CIV. CODE art. 707.
Relevance: This distinction is relevant as to the manner in
which a servitude may be acquired.
Establishing Conventional Servitudes
a.
Establishing Conventional Servitudes by Title
(1)
Generally
(a)
Comparative Note: Similar to common-law principle of
“express grant of easement.”
37
LOUISIANA PROPERTY LAW
(b)
(c)
Form Required
i)
Generally: The establishment of a predial servitude
by title is an alienation of a part of property to
which laws applying to the alienation of
immovables apply. See LA. CIV. CODE art. 708.
Therefore, conventional servitudes may be
established by all acts by which immovables may
be transferred. See LA. CIV. CODE art. 722.
ii)
Substantive Form Requirements: Note that “the
substantive requirements governing the validity
and effect of acts of disposition vary with the
qualification of a particular act as onerous or
gratuitous.” See LA. CIV. CODE art. 708 cmt. d;
see also id. art. 1536 (authentic act required for
inter vivos donation of immovables); id. art. 1839
(transfer of immovable must be made by authentic
act or by act under private signature without
necessity of due acknowledgment); id. art. 1837
(defining “act under private signature”).
Persons Who Can Establish Conventional Servitudes
i)
Mandatary: May establish a predial servitude if he
has an express and special power to do so. See
LA. CIV. CODE art. 709.
ii)
Naked Owner: May establish servitude that does
not infringe on the rights of the usufructuary. See
LA. CIV. CODE art. 710. Any other servitude
requires the usufructuary’s consent. See id.
iii)
Usufructuary: May not establish
servitudes. See LA. CIV. CODE art. 711.
iv)
Owner for a Term or Condition: May establish
servitude, but it ceases with his right. See LA. CIV.
CODE art. 712.
v)
Co-Owner: May establish servitude only with the
consent of all co-owners. If sole co-owner
attempts to grant servitude, it is not null but its
execution is suspended until the consent of all is
obtained. See LA. CIV. CODE art. 714. The grantor
38
predial
LOUISIANA PROPERTY LAW
co-owner lacks standing to object to the exercise
of the servitude. See LA. CIV. CODE art. 715.
(d)
Property Affected by Conventional Servitudes
i)
Property Burdened by Existing Servitudes: The
owner of the servient estate may grant other
servitudes if they do not interfere with existing
servitudes. See LA. CIV. CODE art. 720.
ii)
Mortgaged Property: A predial servitude may be
established on mortgaged property. The
mortgagee may demand payment of the debt if
property value is diminished. If property is sold
free of post-mortgage servitude, the acquirer of
the servitude has an action for the restitution of its
value against the owner who established it. See
LA. CIV. CODE art. 721.
iii)
Public Things : Servitudes may be established on
public things, including property of the state. See
LA. CIV. CODE art. 723.
iv)
Multiple Estates: A servitude may be established
on one estate for the benefit of several or
established on several for the benefit of one. See
LA. CIV. CODE art. 724.
v)
Reciprocal Servitudes: The title that establishes a
servitude for the benefit of a dominant estate may
also establish a servitude on the dominant estate
for the benefit of the servient estate. See LA. CIV.
CODE art. 725.
vi)
After-Acquired Property: Parties may agree that
a servitude will exist on the property if ever
acquired by one even though at that time he or she
does not own it. See LA. CIV. CODE art. 726.
(e)
Conventional Alteration of Legal and Natural Servitudes:
Legal and natural servitudes may be altered by agreement
of the parties if the public interest is not affected
adversely. See LA. CIV. CODE art. 729.
(f)
Interpretation: Doubt as to the existence, extent or manner
of exercise of a predial servitude shall be resolved in favor
of the servient estate. See LA. CIV. CODE art. 730.
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LOUISIANA PROPERTY LAW
b.
Establishing Conventional Servitudes by
Title–Destination of the Owner and Prescription
(1)
(b)
3.
Other
Than
Establishing Apparent Conventional Servitudes: Apparent
servitudes may be acquired (1) by title, see supra, (2) by
destination of the owner, or (3) by prescription. See LA. CIV. CODE
art. 740.
(a)
(2)
Means
Destination of the Owner
i)
Generally: When there exists between two estates
owned by the same person a relationship that, had
they been owned by two different people, would
have resulted in the formation of a servitude, then
an apparent conventional servitude is formed
when the owner ceases to own both of the estates
unless there is an express provision to the
contrary. See LA. CIV. CODE art. 741.
ii)
Comparative Note: Similar to common-law
principle of “implied easement by prior use.”
Acquisitive Prescription
i)
Generally: An apparent servitude may be acquired
by acquisitive prescription of either ten years (with
good faith and just title), or thirty years (in the
absence of good faith and just title). See LA. CIV.
CODE art. 742.
ii)
Comparative Note: Similar to common law
principle of “prescriptive easement.”
Establishing Nonapparent Conventional Servitudes
(a)
Generally: Nonapparent servitudes may be established by
title and by destination of the owner, but not by acquisitive
prescription. See LA. CIV. CODE art. 739.
(b)
Destination of the Owner: A nonapparent servitude is
established by destination of the owner only if the owner
has previously filed for registry a formal declaration
establishing the destination. See LA. CIV. CODE art. 741.
Rights of the Dominant Estate
a.
Right to Make Necessary Works: The owner of the dominant estate may
make at his expense all works necessary for the use and preservation of the
40
LOUISIANA PROPERTY LAW
servitude. See LA. CIV. CODE art. 744. The owner of the dominant estate
may enter the estate for this purpose and deposit materials there. In so
doing, he must cause as little damage as possible, and clean up his mess as
soon as possible. See LA. CIV. CODE art. 745.
4.
b.
Right to Compel Servient Estate Owner to Make Works: When the act
creating the servitude imposes upon the owner servient estate the duty to
make necessary works at his expense, he must do so unless he abandons
the servient estate. See LA. CIV. CODE art. 746.
c.
Rights Upon Division of Dominant Estate: If the dominant estate is divided,
the servitude remains as to each part–provided that the servitude does not
become more burdensome on the servient estate. See LA. CIV. CODE art.
747.
d.
Right to Freedom from Interference: The owner of the servient estate can
do nothing to interfere with the servitude. However, if the original position
of the servitude becomes more burdensome, or if the owner of the servient
estate is prevented from making useful repairs, he may move the servitude
to an equally convenient place and the dominant estate must accept it. See
LA. CIV. CODE art. 748.
Extinction of Conventional Servitudes
a.
b.
Destruction of Dominant or Servient Estate
(1)
Total and Permanent Destruction: Conventional servitudes are
extinguished by total and permanent destruction of the dominant
estate or of the part of the servient estate burdened with the
servitude. See LA. CIV. CODE art. 751.
(2)
Temporary Uselessness Does Not Terminate Servitude: If the
servitude becomes useless because of a change in the things
necessary for its use, it is not extinguished. It resumes its effect
when the things are changed back and the servitude becomes
useful again (unless prescription has already run). See LA. CIV.
CODE art. 752.
Prescription of Nonuse
(1)
Generally: Conventional servitudes are extinguished by ten years of
nonuse. See L A . CIV. CODE art. 753. (Note that natural and legal
servitudes do not prescribe for nonuse. See LA. CIV. CODE art.
758.)
41
LOUISIANA PROPERTY LAW
(2)
Commencement of Ten-Year Period
(a)
(b)
(3)
c.
Affirmative Servitudes: For affirmative servitudes,
prescription commences on date of creation, is interrupted
by use, and commences again after termination of use. See
LA. CIV. CODE art. 754.
i)
Use by Co-Owner: Use by a co-owner in
indivision applies to all co-owners. See L A. CIV.
CODE art. 762.
ii)
Use by Third Person: The servitude is preserved
by anyone using it if the use can be construed as
appertaining to the dominant estate. See LA. CIV.
CODE art. 757.
iii)
Partial Use: A partial use of the servitude
constitutes use of the whole. See LA. CIV. CODE
art. 759.
Negative Servitudes: For negative servitudes, prescription
commences from the date of contrary act. See LA. CIV.
CODE art. 754.
Suspension of Prescription: If the owner of the dominant estate is
prevented from using the servitude by an obstacle which he or she
is powerless to remove, then prescription is suspended for up to ten
years. See LA. CIV. CODE art. 755.
(a)
Not Suspended When Building on Dominant Estate is
Destroyed: Prescription is not suspended if the servitude
cannot be exercised because a building or other
construction owned by the owner of the dominant estate is
destroyed. See LA. CIV. CODE art. 756.
(b)
Not Suspended for Disability: The prescription of nonuse
is not suspended by the minority or other disability of the
owner of the dominant estate. See LA. CIV. CODE art. 763.
Confusion: The dominant and servient estates must be acquired in their
entirety by the same person. See LA. CIV. CODE art. 765.
(1)
Successions: If an heir has accepted the succession under benefit
of inventory, confusion does not take place during the period of
deliberation. If the heir renounces the succession, the servitudes
continue to exist. See LA. CIV. CODE art. 767.
(2)
Comparative Note: Similar to common-law principle of “merger.”
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LOUISIANA PROPERTY LAW
VIII.
d.
Abandonment by Owner of Servient Estate: The owner of the servient
estate may abandon his or her estate or the part of it burdened with the
servitude. Abandonment must be evidenced by a written act. The owner of
the dominant estate is bound to accept it and confusion takes place. See LA.
CIV. CODE art. 770.
e.
Renunciation by Owner of Dominant Estate: A conventional servitude is
extinguished by the express and written renunciation by the owner of the
dominant estate. See LA. CIV. CODE art. 771.
f.
Expiration of Term: If the servitude is established for a term or under a
resolutory condition, it is extinguished when the term expires or the event
happens. See LA. CIV. CODE art. 773.
g.
Dissolution of the Right of the Grantor: A predial servitude is extinguished
by the dissolution of the right of the person who established it. See LA. CIV.
CODE art. 774.
ACQUISITIVE PRESCRIPTION AND POSSESSION–GENERALLY
A.
B.
Acquisitive Prescription
1.
Defined: Acquisitive prescription is the acquisition of ownership or other real rights
through “possession” or use for the requisite statutory period. See LA. CIV. CODE
art. 3473.
2.
Comparative Note: Acquisitive prescription is similar to the common-law principles
of “adverse possession” (for acquisition of ownership), and “prescriptive easements”
(for acquisition of other real rights).
Possession
1.
Generally: The cornerstone of acquisitive prescription is “possession” for a period
of time.
2.
“Possession” Defined: “Possession” is the detention or enjoyment of a thing that one
holds or exercises by himself or by another who keeps it in the possessor’s name.
See LA. CIV. CODE art. 3421.
3.
Acquiring and Maintaining Possession
a.
Acquiring Possession–Generally: To acquire possession, one must:
(1)
Animus: Intend to possess as owner; and
(2)
Corpus: Take corporeal possession of the thing. See LA. CIV. CODE
art. 3424.
43
LOUISIANA PROPERTY LAW
b.
Animus–Intent to Possess
(1)
(2)
Generally: To be a “possessor,” one must intend to possess the
thing as owner. See LA. CIV. CODE art. 3424.
(a)
Rationale: The purpose of this element is to distinguish
those who are merely trespassing or occupying land
through sufferance of the owner from those who are
defying the owner’s rights.
(b)
Presumption
i)
Generally: The law presumes that one who
corporeally detains a thing intends to possess it as
owner. See LA. CIV. CODE art. 3427; id. art. 3424
cmt. b. This presumption is rebuttable. See id. art.
3424 cmt. b.
ii)
Exception: This presumption does not operate if
that person began to possess in the name of and
for someone else. See LA. CIV. CODE art. 3427.
Precarious Possession
(a)
“Precarious Possession” Defined: Precarious possession
is “[t]he exercise of possession over a thing with the
permission or on behalf of the owner or possessor.” See
LA. CIV. CODE art. 3437.
(b)
Presumption: A precarious possessor is presumed to
possess for another even though he may intend to possess
for himself. See LA. CIV. CODE art. 3438.
(c)
Termination of Precarious Possession: The way in which
precarious possession is terminated depends upon whether
the precarious possessor is a co-owner.
i)
Co-Owner: A co-owner terminates precarious
possession and begins possessing for himself
“when he demonstrates this intent by overt and
unambiguous acts sufficient to give notice to his
co-owner.” See L A . CIV. CODE art. 3439. “The
acquisition and recordation of a title from a person
other than a co-owner . . . may mark the
commencement of prescription.” See LA. CIV.
CODE art. 3478.
44
LOUISIANA PROPERTY LAW
ii)
c.
Non-Owners: Any other precarious possessor
begins to possess for himself “when he gives
actual notice of this intent to the person on whose
behalf he is possessing.” See L A . CIV. CODE art.
3439; see also id. art. 3478.
Corpus–Physical Possession
(1)
Corporeal Possession
(a)
Generally: Corporeal possession is “the exercise of
physical acts of use, detention, or enjoyment over a thing.”
See LA. CIV. CODE art. 3425.
(b)
Acts Sufficient to Constitute Corporeal Possession: The
acts sufficient to constitute corporeal possession turns on
the use for which the land is destined. For example, if the
land is swampland, corporeal possession could be
exercised by surveying the property and conducting logging
operations.
(2)
Civil Possession: Once possession is acquired corporeally, it can be
maintained by the intention to possess as owner even though the
corporeal possession has ceased. This principle is called civil
possession. See LA. CIV. CODE art. 3431.
(3)
Constructive Possession: One who corporeally possesses part of an
immovable by virtue of a title is deemed to possess within the limits
of his title. See LA. CIV. CODE art. 3426. (In the absence of title,
one has possession only of the area that he actually possesses. Id.)
(a)
“Good” Title and Good Faith Unnecessary: For
constructive possession, the title may be defective and the
possessor may be in bad faith. See LA. CIV. CODE art.
3426, cmt. b.
(b)
Contiguity Required: For the doctrine of constructive
possession to apply, the lands must be contiguous. For
example, if the land is completely traversed by a navigable
river, the lands on both sides of the river are not contiguous
because the state owns the beds of navigable rivers.
Similar problems exists with public roads if the state has
title to the roadbed.
(c)
No Title, No Constructive Possession: In the absence of
title, one possesses only the area one actually possesses,
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either inch by inch or within natural or artificial boundaries.
See LA. CIV. CODE art. 3426, cmt. d.
4.
Tacking of Possession: See infra ¶ IX.A.3, at 50.
5.
Vices of Possession: Possession that suffers from any of the following vices “has
no legal effect.” See LA. CIV. CODE art. 3435.
6.
7.
a.
Violent “Possession”: Possession is violent when it is acquired or maintained
by violent acts. See LA . C IV. C ODE art. 3436. When the violence ceases,
the possession ceases to be violent. Id.
b.
Clandestine “Possession”: Possession is clandestine when “it is not open or
public.” Id.
c.
Discontinuous “Possession”: Possession is “discontinuous” when it is not
exercised at regular intervals. Id.
d.
Equivocal “Possession”: Possession is “equivocal” when there is ambiguity
as to the intent of the possessor to own the thing. Id.
Loss of Possession: A possessor loses possession if either of the following occurs:
a.
Abandonment: The possessor manifests his intention to abandon possession;
or
b.
Eviction: The possessor is evicted by another by force or usurpation. See
LA. CIV. CODE art. 3433.
Conflicts in Possession: Typic ally, questions of possession arise in the context of
competing claims. The Code does not contain rules for prioritizing such claims, but
a number of rules exist in case law.
a.
Only One Possessor at a Time: Two people cannot be in possession of the
same property at the same time. Thus, once someone acquires possession,
he or she remains in possession until that possession is lost through
abandonment or eviction. When a second person comes along during the
first person’s period of possession, that second person’s acts will not cause
the second person to acquire possession unless those acts constitute an
“eviction” of the first person’s possession. See Liner v. Louisiana Land
& Exploration Co., 319 So. 2d 766 (La. 1975).
b.
Jurisprudential Hierarchy: The following hierarchy exists among acts of
possession:
(1)
Competing Acts of Corporeal Detention: As between competing
acts of corporeal detention, the person who acquires possession
first has an advantage since the second person must “evict” the
first in order for the second person to acquire possession. The
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second possessor’s acts must effectively prevent the first person
from exercising acts of possession for at least a year. See Evans
v. Dunn, 458 So. 2d 650 (La. App. 3d Cir. 1984).
8.
IX.
(2)
Corporeal Detention Trumps Civil and Constructive Possession: As
between acts of corporeal detention, on the one hand, and acts of
civil or constructive possession on the other, corporeal detention
trumps civil or constructive possession. Ellis v. Prevost, 19 La. 251
(1841).
(3)
Competing Acts of Constructive Possession: As between
competing constructive possessions, the case law is uncertain.
However, the first person to establish constructive possession can
be evicted only by acts of corporeal possession. See Gilmore v.
Schenck, 115 La. 386, 39 So. 40 (1905); Whitley v. Texaco, Inc.,
434 So. 2d 96 (La. Ct. App. 5th Cir. 1983).
Possessory Actions: See Code of Civil Procedure Bar Review Outline (discussing
“right to possess” and prerequisites to possessory action).
ACQUISITIVE PRESCRIPTION OF IMMOVABLES
A.
Ten-Year Acquisitive Prescription: Ownership and other real rights in immovables may be
acquired by the prescription of ten years. See LA. CIV. CODE art. 3473.
1.
2.
Generally: The elements required for ten-year acquisitive prescription of immovables
are as follows:
a.
Possession for Ten Years: Possession for ten years
b.
Good Faith: Good faith;
c.
Just Title: Just title to the property;
d.
Thing Susceptible: A thing susceptible of acquisition through acquisitive
prescription. See LA. CIV. CODE art. 3475.
Elements Explained
a.
Possession: Possession for ten-years. On what constitutes, “possession,”
see supra Part II (Possession). On tacking of possession, see infra.
b.
Good Faith
(1)
Generally: A possessor is in good faith, if he reasonably believes
in light of objective considerations that he is the owner of the
property. See LA. CIV. CODE art. 3480.
(a)
Test: Would a person of ordinary business experience
believe that the transferor is the owner of the property?
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LOUISIANA PROPERTY LAW
(b)
Considerations : Look to objective factors, such as
reasonableness of the price, whether the property is sold
without warranty of title.
(c)
Effect of Quitclaim Deed
i)
Quitclaim Defined: A quitclaim (an importation
from the common law) is a transfer of all the
rights the transferor may have in certain property,
without a warranty that the transferor has any
interest at all. See LA. CIV. CODE art. 2502, cmt.
b.
ii)
Effect: A quitclaim deed does not automatically
destroy the presumption of good faith. It i s a
factor to consider, however, in evaluating the
transferee’s good faith. See LA. CIV. CODE art.
2502.
(2)
Presumption of Good Faith: Good faith is presumed. This
presumption may be rebutted with proof that the possessor knows,
or should know, that he is not the owner of the thing that he
possesses. See LA. CIV. CODE art. 3481. This presumption is not
defeated merely by showing that the possessor suffered from an
error of fact or an error of law, unless such error destroys either
the honesty of the possessor’s actual belief or else the
reasonableness of his belief. See LA. CIV. CODE art. 3481, cmt. c.
(3)
Timing of Good Faith: As a general rule, good faith is needed only
at the commencement of the possession. If the possessor discovers
defects and becomes in bad faith after taking possession, will be
irrelevant. See LA. CIV. CODE art. 3482.
(4)
Good Faith and Title Examinations: Title examinations have never
been required for a buyer to be in good faith. See generally LA.
CIV. CODE art. 3481, cmt. e. However, before Phillips v. Parker,
483 So. 2d 972 (La. 1986), it was very difficult to prove good faith
if you conducted a title search. This was so because of pre-Phillips
case law that imputed to the would-be buyer knowledge of all
information in the public records whenever he, or someone on his
behalf, conducted a title search. Phillips repudiated this case law.
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c.
Just Title
(1)
(2)
General Requirements: A “just title” is a juridical act sufficient to
transfer ownership or another real right. See LA. CIV. CODE art.
3483.
(a)
Substantive: The juridical act must be sufficient to transfer
ownership or other real right, for example, an act of sale,
donation, dation en paiement (giving in payment), or
exchange, but not a lease or loan. In short, the act must be
one that would have conveyed ownership or established a
real right had it been executed by the true owner. See LA.
CIV. CODE art. 3483, cmt. b.
(b)
Formal: The act must be written, valid in form, and filed for
registry in the conveyance records of the parish in which
the immovable is situated. See LA. CIV. CODE art. 3483.
Special Problem–Transfer of an Undivided Interest
(a)
Generally: An act purporting to convey ownership to an
undivided interest in an immovable is a just title only as to
the interest purported to be transferred. See LA. CIV.
CODE art. 3484.
(b)
Hypotheticals: Compare the following two hypotheticals:
i)
Hypothetical One: A owns an undivided 1/4
interest in Blackacre. He executes deed in favor
of B, conveying to B only an undivided 1/4 interest
in Blackacre. B has “just title” only to the 1/4
interest mentioned in the deed. Because A actually
owns an undivided 1/4 interest, B gets not only just
title but good title from A. However, B cannot
successfully argue that he has just title to entire
Blackacre on theory that he thought A conveyed
the whole thing.
ii)
Variation: A owns only an undivided 1/4 interest in
Blackacre, but executes a deed in favor of B,
purporting to convey full ownership of Blackacre
to B. Here, B obtains good title to the undivided
1/4 from A, and perhaps just title to the whole of
Blackacre.
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LOUISIANA PROPERTY LAW
d.
3.
Thing Susceptible of Prescription: The final requisite for ten-year acquisitive
prescription is that the thing be one that is “susceptible of acquisition by
prescription.” See LA. CIV. CODE art. 3475.
(1)
Private Things: All private things are susceptible of prescription
unless legislation provides otherwise. See LA. CIV. CODE art. 3485.
However, prescription does not run against the state even if the
thing is private. See Todd v. State of Louisiana, 456 So. 2d 1340
(La. 1983); 465 So. 2d 713 (La. 1985).
(2)
Common and Public Things : Common and public things are not
susceptible of prescription. See LA. CIV. CODE art. 3485, cmt. b.
Tacking of Possession
a.
“Tacking” Defined: When possession is transferred, the possession of the
transferor is added (“tacked”) to the possession of the transferee as long as
there has been no interruption of possession. See LA. CIV. CODE art. 3442.
b.
Juridical-Link Requirement: Tacking occurs when possession is transferred
from a transferor to a transferee. Possession can be transferred only if
there is a universal or particular title evidencing the transferee’s right to
succeed the transferor. The case law tends denominates this as the
juridical-link requirement. See LA. CIV. COD E art. 3441 (“Possession is
transferable by universal title or by particular title.”); id. art. 3442 cmt. d
(“Taking of possession presupposes a juridical link.”)
(1)
Juridical link in Universal Succession: In a universal succession, the
juridical link is supplied by the legal right of the universal successor
to stand in the shoes of the decedent. See LA. CIV. CODE art. 3442,
cmt. b.
(2)
Juridical Link in Particular Succession
(a)
Generally: In a partic ular succession, the juridical link is
supplied by the act transferring ownership or “ownership”
from the transferor to the transferee. See LA. CIV. CODE
art. 3442, cmt. b.
(b)
Special Tacking Rules–Good/Bad Faith and Particular
Successors: The Louisiana Supreme Court has held that
good faith is necessary for a particular successor to tack
for purposes of ten-year acquisitive prescription. See
Bartlett v. Calhoun, 412 So. 2d 597 (La. 1982). Consider
the following hypotheticals:
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LOUISIANA PROPERTY LAW
i)
Hypothetical One–No Tacking: A begins
possessing Swampacre in 1980 and meets all the
criteria for ten-year acquisitive prescription. His
good faith is lost in 1981 when he learns that B
really owns Swampacre. Nonetheless he
c ontinues to possess. In 1990 A gets ownership
through acquisitive prescription.
ii)
Hypothetical Two–Tacking by Universal
Successor: C begins possessing Whiteacre in 1980
and meets all the criteria for ten-year acquisitive
prescription. His good faith is lost in 1981 when he
learns that D really owns Whiteacre. He
immediately tells his son E . Nonetheless C
continues to possess until his death in 1988. His
son E is his sole heir and succeeds to all of C’s
rights, which include C’s status as a possessor in
whose favor ten-year acquisitive prescription has
begun to run. In 1990 E gets ownership through
acquisitive prescription. E’s good faith/bad faith is
not relevant because E is a universal successor.
iii)
Hypothetical Three–Tacking by Particular
Successor. F begins possessing Greenacre in 1980
and meets all the criteria for ten-year acquisitive
prescription. His good faith is lost in 1981 when he
learns that G really owns Whiteacre. He
immediately tells his best friend H. Nonetheless F
continues to possess until he sells Greenacre to H
in 1988. H goes into possession of Greenacre
immediately after the sale, and commences a new
possession for purposes of ten-year acquisitive
prescription. In 1990 H does not get ownership
through acquisitive prescription. H’s good faith is
relevant under Bartlett because H is a particular
successor. In order to acquire ownership of
Greenacre through ten-year acquisitive
prescription H would have had to have been in
good faith. Had he been in good faith, he could
have tacked F’s good-faith possession and he
would have acquired ownership in 1990.
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LOUISIANA PROPERTY LAW
(3)
Exception to Juridical Link Requirement–Boundary Tacking: If a
party and his ancestors in title possessed without interruption,
within visible bounds, more land than their title called for, the
boundary shall be fixed along these bounds. See LA. CIV. CODE art.
794; see also LA. CIV. CODE art. 3442, cmt. d (“Despite the
nonexistence of a juridical link, tacking is permitted in boundary
actions within the limits of Article 794 . . . .”)..
(a)
Limited Application to Boundaries: This special rule of
tacking applies only in the boundary context.
(b)
Hypothetical: Assume that X buys Blackacre in 1960. He
immediately goes into possession and possesses north to
the fence that exists along what X thinks is his northern
boundary. Unbeknownst to X, the northern boundary is 100
feet south of the fence. X possesses up to the fence until
1975 when he sells Blackacre to Y. Y in turn begins
possessing up to the fence. Y continues to possess up to
the fence to this day.
i)
General Tacking Principles: Under general tacking
principles, Y cannot tack X’s possession onto his
own possession as to the 100 foot strip because
there is no juridical link (that is, there no title
linking the possession of X with the possession of
Y vis-a-vis the 100 foot strip).
ii)
Special Boundary-Tacking Rules: Article 794
permits tacking in the boundary context. Keep in
mind that article 794 does require the following for
tacking to occur:
52
a)
Some Juridical Link: There must be a title
as to some of the land. This requirement
supplies the juridical link that permits
tacking to occur. (The juridical link in this
hypothetical relates to land adjacent to the
disputed track, rather than the usual case
of a juridical link to the disputed track.)
b)
Poss ession Within Visible Bounds: The
parties must possess within “visible
bounds.”
LOUISIANA PROPERTY LAW
4.
B.
a.
Loss of Possession: Acquisitive prescription is interrupted when possession
is lost unless the possessor recovers possession within one year or even
later if he recovers by means of an action brought within one year. See LA.
CIV. CODE art. 3465.
b.
Prescription Runs Against All: Prescription runs against absent persons and
imcompetents, including minors and interdicts. See LA. CIV. CODE art.
3474.
Thirty-Year Acquisitive Prescription
1.
2.
X.
Interruption of Prescription
Generally: Ownership and other real rights in immovables can be acquired by thirtyyear prescription without the need of either just title or possession in good faith. See
LA. CIV. CODE art. 3486.
a.
Applicability of Ten-Year Acquisitive Prescription Rules: The rules of tenyear acquisitive prescription govern thirty-year acquisitive prescription to the
extent that they are compatible with thirty-year acquisitive prescription. See
LA. CIV. CODE art. 3488.
b.
Acquisitive Prescription by Governmental Body: In Parish of Jefferson v.
Bonnabel Properties, Inc., 620 So. 2d 1168 (La. 1993), the Louisiana
Supreme Court (in a 4-3 decision) held that the Louisiana Constitution does
not allow either a parish or other political subdivision of the state to acquire
title to immovable property through thirty-year acquisitive prescription.
Irrelevance of Constructive Possession: For purposes of acquisitive prescription
without title, possession (generally) extends only to the land that has actually been
possessed. See LA. CIV. CODE art. 3487.
ACQUISITIVE PRESCRIPTION OF MOVABLES
A.
Generally : Ownership and other real rights in movables can be acquired through three- or
ten-year acquisitive prescription. See LA. CIV. CODE art. 3489.
B.
Three-Year Acquisitive Prescription: The requisites for three-year acquisitive prescription
are:
1.
Possession: Possession as owner;
2.
Good Faith: Good faith;
3.
Juridical Act: An act sufficient to transfer ownership, and
4.
Possession: Possession without interruption for three years. See LA. CIV. CODE art.
3490.
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LOUISIANA PROPERTY LAW
C.
Ten-Year Acquisitive Prescription: One who possesses a movable for ten years as owner
acquires its ownership through ten-year acquisitive prescription without just title or good
faith. See LA. CIV. CODE art. 3491.
* * * END * * *
54