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LOUISIANA CIVIL LAW PROPERTY
I. COMMON, PUBLIC, & PRIVATE THINGS
CC Art 448 – Division of Things
Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.
CC Art 449 – Common Things
Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used
by everyone conformably with the use for which nature has intended them.
PRIVATE THINGS
CC Art 453 – Private Things
Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their
capacity as private persons. The key to private things is that they are in commerce.
*Note private property is susceptible to prescription unless it belongs to political subdivision or the state. In
order to make that sort of argument you attack classification.
CC Art 461 – Corporeals and Incorporeals
- Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
- Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of
inheritance, servitudes, obligations, and right of intellectual property.
*Note: electricity may be considered as corporeal according to the revision comments.
Real Rights
Rights that confer a direct and immediate authority over a thing.
Things are categorized in art 448: Division of things: so real rights over anythings.Except for common
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things as those things belong to everyone, and can be be used and shared.
Predial Servitude
When a possessor uses the land of a landowner, not excluding the owner from use of the land, but essentially
sharing the property rights with the owner. (predial: of, consisting of, relating to, or attached to land)
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Paying off a big store across the street to allow your customers to park in their parking lot; this is not a
lease, but it is a right in the land; this is a real right.
II. NAVIGABLE WATER BODIES
CC Art 451 – Seashore
Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season.
*Note: direct overflow from the tides of the Gulf, not all land is seashore as it may be from indirect overflow.
Riparian Owner – owner of a riverbank – property rights continue until the middle (imaginary line) of the river
or stream.
How to do a waterway analysis.
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If the waterway is “usable for commerce in its natural condition,” then it is navigable.
● The issue is not whether it has been used for commerce, but whether it could possibly be used for commerce at
the present time.
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1812 is a crucial date to determine whether a waterway is navigable. In 1812, Louisiana became a state. Thus, at
that point, if the waterway was navigable, then it became state property.
NAVIGABLE RIVERS
CC Art 450 – Public Things
- Public things are owned by the state or its political subdivisions in their capacity as public persons.
- Public things that belong to the state are such as running waters, the waters and bottoms of natural
navigable water bodies, the territorial sea, and the seashore.
- Public things that may belong to political subdivisions of the state are such as streets and public squares.
- Public things are out of commerce.
CC Art 456 – Banks of Navigable Rivers or Streams
- The banks of navigable rivers or streams are private things that are subject to public use.
- The bank of a navigable river or stream is the land lying between the ordinary low and the ordinary high stage
of the water. Nevertheless, when there is a levee in proximity to the water, established according to law, the levee
shall form the bank.
According to well-settled Louisiana jurisprudence, which continues to be relevant, the servitude of public use under this provision is
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not “for the use of the public at large for all purposes” but merely for purposes that are “incidental” to the navigable character of the
stream and its enjoyment as an avenue of commerce. Vessels may be temporarily moored to the banks of navigable rivers, but there is
strong doubt that this may be done “freely” as Article 455 (1870) declares. The rights of the general public to unload vessels and to
deposit goods may be clearly exercised in public landings or other facilities, but it is questionable whether these rights may be exercised
in all banks.
“Servitude of public use” is used to refer to navigable riverbanks because the public can use them; and thus
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they “serve” the public.
“The riparian owner cannot enjoy the bank in such a way as to prevent its common enjoyment by all, nor is he
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entitled to be preferred over others in the use of the banks as a landing place…”
III. MOVABLES & IMMOVABLES; CORPOREALS & INCORPOREALS
IMMOVABLES: TRACTS OF LAND & THEIR COMPONENT PARTS
CC Art 462 – Tracts of Land
Tracts of land, with their component parts, are immovables.
CC Art 463 – Component Parts of Tracts of Land
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or
ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.
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BUILDINGS, OTHER CONSTRUCTIONS, & THEIR COMPONENT PARTS
CC Art 464 – Buildings and Standing Timber as Separate Immovables
Buildings and standing timber are separate immovables when they belong to a person other than the owner of the
ground.
Buildings separated in ownership from the land on which they stand are distinct immovables for all
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purposes. A unit in a condominium is a separate immovable.
Constructions permanently attached to the ground, other than buildings, are component parts of a tract of
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land when they belong to the owner of the ground. They are movables when they belong to another person. Art
464 declares that only buildings and standing timber may be separate immovables.
The court looks to the prevailing notions to determine that it is a building. To make the determination that the
structure is a building, the court specifically refers to the:
Use of the structure: It is used for housing people, and it had living quarters.
Size of the structure: It is 3 stories high, and very large; thus, it is considered an immovable.
Cost of the structure: The cost of the building is substantial.
TWO Requirements for an “other construction” to be a component part: (CC Art 463)
1) It must be permanently attached to the ground. Things are considered permanently attached if they cannot
be removed without “substantial damage” to themselves and/or to the immovable to which they are attached.
2) It must belong to the owner of the ground. When there is no “unity of ownership,” a building is considered
a separate immovable. Thus, buildings are always classified as immovables, either separate or not separate.
Determining whether something is a component part of an immovable:
1. Incorporation/Integral Part Test
Apply the incorporated or integral part test to determine whether the thing is incorporated into the immovable or
whether the thing is an integral part of the immovable. (CC Art 465)
2. Substantial Damage Test
Apply the “substantial damage” test to determine whether or not removing the thing from the immovable will
cause substantial damage to the immovable and/or to the part. (CC Art 466)
*Ownership of component parts of an immovable is presumed and is only rebuttable by recordation. *
CC Art 465 – Things Incorporated into an Immovable
Things incorporated into a tract of land, a building, or other construction, to become an integral part of it, such as
building materials, are its component parts.
Integral parts are tied into the structure. If removed the structure will be compromised.
Your heart is an integral part and your eyebrows would be considered a component part.
CC Art 491 establishes that immovables considered “other constructions” may belong to a person other
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than the owner of the ground, but they are presumed to belong to the owner of the ground unless separate
ownership is recorded in the public record. Absent such recordation, the “other construction” is considered a
component part of the land and is transferred with it.
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CC Art 466 – Component Parts of Buildings or Other Constructions
1.Things that are attached to a building and that, according to prevailing usages, serve to complete a building the
same general type, without regard to specific use, are its component parts. Component parts of this kind may
include doors, shutters, gutters, and cabinetry, as well as plumbing, heating, cooling, electrical, and similar
systems.
2.Things that are attached to a construction other than a building and that serve its principal use are its component
parts. * Driveway Example
3.Other things are component parts of a building or other construction if they are attached to such a degree that
they cannot be removed without substantial damage to themselves or to the building or other construction.
- Things permanently attached to a building or other construction, such as plumbing, heating, cooling,
electrical or other installations, are its component parts and cabinets, and shutters, doors, and gutters.
- Things are considered permanently attached if they cannot be removed without substantial damage to
themselves or to the immovable to which they are attached.
- Component parts serve to complete a building but are not tied into the building. They are not necessary for
the building to still be sound.
CC Art 467 – Immovables by Declaration
The owner of an immovable may declare that machinery, appliances, and equipment and other movables owned
by him and placed on the immovable, other than his private residence, for its service and improvement are
deemed to be its component parts. The declaration shall be filed for registry in the conveyance records of the
parish in which the immovable is located.
Immovables by Declaration only apply to commercial property, because the purpose of the rule is to
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facilitate commerce. People cannot abuse this rule and declare all their personal things as immovables.
It is important to decide why the party contends that the property in question is either immovable or movable.
There are 3 rules that govern this decision:
1) First, there are items that are always immovables. (Buildings, tracts of land, standing timber)
2) Component Parts of Immovables are also immovable.
3) Legal Relationship between a movable and an immovable by a declaration in the record.
Someone who owns a canning plant, and he uses huge forklifts to operate the canning plant, the owner
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can file a declaration to declare the forklifts as component parts of the land of the canning plant.
STANDING TIMBER
Standing timber is a component part of a tract of land when it belongs to the owner of the ground, and a
separate immovable when it belongs to another person. Fallen timber is movable property, whether it
belongs to the owner of the ground or to another person.
STANDING CROPS
Unharvested, Ungathered Crops
Immovables – Unharvested crops are immovables (and belong to the owner of the ground) when the lessee
(1)
does not publicly record his lease (or interest in the crops).
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Movables “by anticipation” – Unharvested crops are “movables by anticipation” when the lessee publicly
(2)
records his lease (or interest in the crops).
THE RECORDATION REQUIREMENT
The idea of recordation comes up with respect to crops very often because crops are often separately
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owned from the land.
Recordation is required in order for the separate ownership of unharvested crops to affect third parties.
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Recordation requirements only apply to third parties, not to the agreement/lease between the two
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parties themselves.
Porche v. Bodin
The lessee safeguarded his right in the crop by recording his lease (and thus his right in the crops), and
therefore, when the land is sold (when the lessor/owner of the land sells the land), the lessee retains rights in
the crops as movables by anticipation.
CC Art 491 – Buildings, Other Constructions, Standing Timber, and Crops
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or
ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, they are
presumed to belong to the owner of the ground, unless separate ownership is evidenced by an instrument filed
for registry in the conveyance records of the parish in which the immovable is located.
NON-IMMOBILIZATION
There are Three Ways to Argue (or 3 Exceptions) that Immobilization did not take place:
Non-Immobilization (By Virtue of Statute)
1)
This is a way to argue that immobilization did not take place. Something that could be a component part of an
immovable is nonetheless a movable, because of a statute that prevents it from becoming an immovable.
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Storage tanks are always movables when placed on land by a non-owner of the land.
Chattel Mortgage Exception
2)
Chattels which are being mortgaged are not immovable component parts of an immovable. There is a
recordation requirement only with the chattel mortgage exception. The chattel mortgage preserves the
movability of otherwise immovable component parts of the main immovable when there is a mortgage on the part
in question – even if the movable is moved to a building and installed there and attached to it where it would
normally be an immovable component part, if there is a chattel mortgage on that part, then the part retains its
movable status no matter the circumstances.
Vendor’s Lien & Privilege
3)
The third (and last) way to challenge immobilization is the vendor’s lien and privilege. It applies when there is a
credit sale, and the product is “still in the hands of the purchaser,” and there is something unpaid for, and now
some third person is trying to assert ownership over the parts of the whole. The question to ask to see if a
vendor’s lien applies is whether the part has maintained its own identity. The “substantial damage” test is used
to determine what a component part is in this issue. With a vendor’s lien and privilege, there is a credit sale and
therefore a debt. The debt exists (this is not debated) and there is a determining question of loss of identity and
extent of the merger: would there be substantial damage if removed from immovable?
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DE-IMMOBILIZATION
* Very Important* CC Art 468 – Deimmobilization – does not have to be declared
- Component parts of an immovable so damaged or deteriorated that they can no longer serve the use of lands or
buildings are deimmobilized.
- The owner may deimmobilize the component parts of an immovable by an act translative of ownership and
delivery to acquirers in good faith.
-
In the absence of rights of third persons, the owner may deimmobilize things by detachment or removal.
There must be actual detachment. Intention to remove or detach doesn’t suffice.
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De-Immobilization is different from Non-Immobilization because with De-Immobilization, there are parts which
were immovable but become movable due to certain circumstances (fire), whereas with Non-Immobilization,
there is no concern with the part reverting back to movable status.
CC Art 472 – Building Materials
- Materials gathered for the erection of a new building or other construction, even though deriving from the
demolition of an old one, are movables until their incorporation into the new building or after construction.
- Materials separated from a building or other construction for the purpose of repair, addition, or
alteration to it, with the intention of putting them back, remain immovables.
Immovables by destination become movables again when they lose their servicing aspect to the larger
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immovable (the building). Selling these parts accomplishes this reversion back to movable status, and so does
destruction by fire, even though the fire is not intentional; the resulting scrap metal has no service use to the
building, so the P cannot claim the scrap metal, in her mortgage, as an immovable by destination because it is not
still servicing the building.
If the characteristics of the separated metal are that it still has service to the building, then it should be
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construed to be still a component (immobilized) part of the building.
IMMOVABLES BY THEIR OBJECT
CC Art 470 – Incorporeal Immovables
Rights and actions that apply to immovable things are incorporeal immovables. Immovables of this kind are such
as personal servitudes established on immovables, predial servitudes, mineral rights, and petitory or
possessory actions.
MOVABLES
Acquisitive Prescription( Movables)
Requirements for Acquisitive Prescription of Movables:
⮚
1.
2.
3.
4.
Three Year Acquisitive Prescription:
Prescriptable Object
Good Faith
Act sufficient to transfer
3 Years of Uninterrupted Possession
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⮚
1.
2.
3.
Ten Year Acquisitive Prescription:
Prescriptable Object
10 Years of Possession
Neither title nor good faith is required
“Movables” is the Residual Class of Things. Movables can be both Corporeal and Incorporeal.
Movables are the residual class, and they are less protected than immovables. Movables can be more easily
transferred by an act translative of a sale (a sale); this is because to make it otherwise would be to burden
commerce. To make someone have to bring his or her actual movable properties to a sale would be ridiculous.
CC Art 471 – Corporeal Movables
Corporeal movables are things, whether animate or inanimate, that normally moves or can be moved from one
place to another.
CC Art 473 – Incorporeal Movables
- Rights, obligations, and actions that apply to a movable thing are incorporeal movables. Movables of this kind
are such as bonds, annuities, and interests or shares in entities possessing juridical personality.
- Interests or shares in a juridical person that owns immovables are considered as movables as long as the entity
exists; upon its dissolution, the right of each individual to a share in the immovables is an immovable.
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Money is a Movable, and the Right to Money is a Movable. (CC Art 473 & CC Art 475)
Beard v. Duralde
Issue: Whether the materials (bricks and lumber) stored on the land are immovables or movables.
Holding: The court held that the resting bricks were considered movables even though they were meant to service
the larger immovable (building) because they have not yet attached or helped to enlarge the building. CC Art 467
establishes that materials, which are collected for raising a new building, are movables until they have been used
in a raising a new building. This is the relevant point here; the materials have not yet gone into the construction of
the new building – they were simply lying on the ground waiting to be used.
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Exam Hypo: Movables & Immovables
1. A cell phone tower on the side of the road; what information about it do you need to know to determine whether
the tower is movable or immovable?
Is it permanently attached to the ground?
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CC Art 462 – Tracts of land, with their component parts, are immovables.
CC Art 463 – Buildings, other constructions permanently attached to the ground, standing timber, and
unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the
owner of the ground.
CC Art 465 – 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.
If the tower is permanently attached to the ground, then it could be considered an “other construction” and
a component part of the land, and thus an immovable.
How to determine whether it is permanently attached à Is it integrated in the soil?
Is there unity of ownership?
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CC Art 464 – Buildings and standing timber are separate immovables when they belong to a person other
than the owner of the ground.
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Does the ground owner own the tower? If yes, then the tower is an immovable component part of the land.
If no (if someone other than the ground owner owns the tower), then the tower is not an immovable – instead, it is
a separate immovable.
Is the tower a “building”?
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NO, it is not. Why not? – Because you look at the use of the structure; the fact that it is not enclosed
(such as a garage) makes it not a building. Instead, the tower is an other construction. This is not dispositive in
this case because the tower qualifies as an “other construction.”
2. Suppose a cell phone company owns the tower, but it does not own the land. The landowner wants to sell the
land, and the bank forecloses. Is the cell phone tower included in the transfer of land? What information do you
need to know?
Has the cell phone company recorded its separate ownership in the tower?
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CC Art 491 – Buildings, other constructions permanently attached to the ground, standing timber, and
unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground.
Nevertheless, they are presumed to belong to the owner of the ground, unless separate ownership is evidenced by
an instrument filed for registry in the conveyance records of the parish in which the immovable is located.
If the cell phone company has recorded its separate ownership in the tower, then the tower is not included
in the sale of the land.
If the cell phone company has not recorded its separate ownership in the tower, then the tower is included
in the sale of the land.
Remember, in Louisiana, the recording statute is “RACE,” so whoever recorded first in the record has the
precedent.
3. There is an owner of a stable; he rents out stalls to riders who own their own horses, and he wants to mortgage
the immovable property to secure the amount of a loan he wants to take, but the value of the mortgage (value of
the land) is not enough to secure the loan. What can the landowner do to increase the value of the land?
He can declare the separate movables to be component parts of the land (in the public record), and thus
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they would be included in the mortgage value. He can declare the horses too, if he owns them. But, consider
that only commercial property owners can declare movables.
CC Art 467 – Movables by Declaration – Movables are converted into immovables by destination when
the landowner places them on the immovable (land) for the purposes of “service and improvement” and once they
service the land, and the landowner declares those “parts” to be immovables, by filing a declaration of their
immovable status in the public record, they are then immovables by destination.
DEDICATIONS
A.
FORMAL DEDICATION*
a.
An express/written declaration that a private person is surrendering ownership of a piece of private
property to the State or political subdivision; and
b.
An expression of intent is presumed from the written instrument, and the property is then converted from private to
public property upon the acceptance from the State or political subdivision.
c.
The dedication can be relative to ownership or just a public servitude.
B.
STATUTORY DEDICATION*
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a.
Is not a “formal” dedication but is a transfer of private property to the public because the owner of the land subdivided
the land into various parts, placed the intended lots to be sold on a subdivision plat. The said plat must be recorded;
b.
Lots are to be numbered and identified by the location of the bordering streets or roads;
c.
The roads or streets listed in the “new” subdivision plans that have been created by the owner of the land must lead
the State or political subdivision to believe that owner has dedicated them. Compliance with the statute is sufficient for
dedication purposes, and will eliminate the need for a formal statement from the owner;
d.
The dedication can be relative to ownership or just a public servitude.
C.
TACIT DEDICATION
a.
Reserved for land intended to be used for roads or streets;
b.
Requirement that the State or political subdivision maintained the road/street for a period of three years--the (3) three
years need not be consecutive;
c.
It must be shown that the owner and adjacent owners had either actual or constructive knowledge of the public
maintenance of the road/street;
d.
Actual intent of the owner to dedicate the property is not necessary;
e.
To prove public maintenance, the State or political subdivision must have used either public funds, public materials
or public labor to perform the maintenance--no maintenance by the State or political subdivision could undermine the
dedication argument; and
f.
Once a tacit dedication is complete, a servitude of passage or a servitude of public utility is created. However,
ownership is not transferred from the owner to the public.
D.
IMPLIED DEDICATION
a.
No need for a formal written act to dedicate;
b.
Two basic requirements:
(1) intent to give/to dedicate by the owner; and
(2) intent to accept by the State; (Common Law principle)
c.
Burden of proof is on the party intending to show that a dedication has occurred;
d.
Implied dedication will be based on the owner's actions and actual use by the
e.
Servitude of Use is created--ownership has not been transferred; and
f.
Some legal scholars have used tacit and implied dedication interchangeably, but tacit
is reserved for land used for streets and roads.
*
This form of dedication can result in ownership of the land being transferred to the public.
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IV. POSSESSION
To maintain a possessory action, the possessor must allege and prove:
1.
He had corporeal possession of the immovable at the time the disturbance occurred;
2.
Had such possession quietly and without interruption for a year or more prior to the disturbance,
unless evicted by force or fraud;
3.
The disturbance was one in fact or in law;
4.
The possessory action was instituted within a year of the disturbance
POSSESSORY ACTION
Requirements for Possessory Action:
1.
Intent to own for self;
2.
Corporeal possession
a.
Physical possession, and is the first form of possession exercise by the possessor
b.
Corporeal possession must indicate an intent to own property at issue
3.
Possession must be open, non-violent and UNINTERRUPTED
4.
Exercise of possession must be for one full year
5.
Property must be susceptible of acquisitive prescription
a.
Public property can be possessed by attacking the classification – not the rule
When you have FACT Possession PLUS ONE YEAR, you have…
Right to Possess: to be protected in possession, and be maintained in possession, by the courts. The right of
possession can be challenged by an owner coming forward and showing title to ownership with a petitory action,
or by another possessor (with the right to possess) bringing a possessory action.
DEFINITION, NATURE, & EFFECTS OF POSSESSION
Possession, as defined properly, only applies to corporeal things. The exercise of a right, such as a servitude,
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with the intent to have it as one’s own, is considered quasi-possession. However, possession and quasipossession are governed the same because the rules governing possession apply by analogy to quasi-possession of
incorporeal.
CC Art 3422 – Nature of Possession; Right to Possess
Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to
possess it.
CC Art 3423 – Rights of Possessors
A possessor is considered provisionally as owner of the thing he possesses until the right of the true owner is
established.
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Under this provision, a possessor is vested with the prerogatives of ownership as long as there is no other
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owner.
Possession gives rise to certain rights, such as the possessor’s entitlement to reimbursement for certain
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expenses.
Do you possess something? What pertinent information do you need to know?
Do you have the intent to act as owner? (this is the animus requirement)
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For possession to occur, you must have the intent to act as owner. If you have the intent to act as owner, then you
have possession.
How do show the intent to act as owner? You exclude other people from the use of the thing; and exclude others
from getting fruits from that thing.
Intent to act as owner is shown by the nature of the use, the getting of fruits from the thing, and the exclusion of
others from using that thing.
Do you have (or did you have) physical detention of the thing? (this is the corpus requirement)
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If you physically possess a thing, holding a thing in an exclusive manner and in carrying out on it the same
material acts of use and of enjoyment as if its possessor were its owner, using the thing to get fruits from the thing,
and exclude others from using that thing, then you have physical detention.
Once you have physical detention of a thing, then you can abandon that thing, still with the intent to possess as
owner, and the corpus requirement is still satisfied.
CORPOREAL, CIVIL, & CONSTRUCTIVE POSSESSION
CC Art 3425 – Corporeal Possession
Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.
CC Art 3426 – Constructive Possession
One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within
the limits of his title. In the absence of title, one has possession only of the area he actually possesses.
CC Art 3431 – Retention of Possession; Civil Possession
Once acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess
corporeally. This is civil possession.
In order for the real owner to get you off of his property; he would have to file a petitory action.
Possession is acquired by the actual and corporeal detention of the property – this is the corporeal (natural)
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possession, or possession in fact; and it is preserved and maintained by the mere will or intention to possess – and
this is the civil possession, or possession in right.
Corporeal Possession: (possession in fact) – when a man detains a thing corporeally, as by occupying a
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house, or cultivating a field.
Civil Possession: (possession in right) – when a person ceases to reside in the house or on the land which he
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occupied, but without intending to abandon the possession.
In order for there to be civil possession, there must FIRST be corporeal possession at some point, and
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SECOND, there must be the intent to possess once corporeal possession is lost (or after losing detention of the
thing).
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Prevost is unable to get more land because she is unable to discern by “metes and bounds” the actual boundaries
of what she had cultivated. But why does she still get to keep her enclosed tract of land?
Because that land is enclosed, which satisfies the requirement to have corporeal possession of land “by metes
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and bounds.” When land is enclosed, it is easy to see that the land is “being used” by the possessor and thus, such
corporeal possession “ousts” civil possession (but only with respect to land that she can prove that she was
physically using).
Later Corporeal Possession ousts Earlier Civil Possession
This is how Prevost (∆) maintains her enclosed tract of land; she claims later corporeal possession against P’s
earlier civil possession. Once civil possession is established, corporeal possession for more than a year (with the
intent to act as owner) can be used to usurp this civil possession.
Civil Possession has a “Notice” Requirement in a way. There must be some notice that you had corporeal
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possession; there has to be some witness to say that you had corporeal possession at some point in order for it to
hold up in court.
Corporeal possession can usurp constructive possession when the corporeal possession lasts more than 1 year.
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Mere disturbances will not usurp constructive possession because they do not deprive the possessor of his
dominion and control over the land.
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Types of Possession
Corporeal
Physical detention of the thing w/ the intention to possess as owner.
Corporeal possession has to happen first.
Begins with corporeal, continued by intent alone; created in Ellis v. Prevost;
Civil
in essence, you drop the physical aspect of possession but still keep possession.
Extension of corporeal possession of part of whole by virtue of title of the whole.
Constructive “Constructive” means constructed by the legal system; possession of the whole is
imputed by having the title to the whole.
Any one of these 3 types of possession plus 1 year = the right to possess (the right to be maintained in possession
in a possessory action).
When one has record title to the whole, the possession in part imputes possession of the whole. (Constructive
●
Possession)
When one claiming possession has a title, the requirements for establishing possession are simpler than
●
those which are required of a mere trespasser.
Slight acts that evidence an intent to possess will support possession with title.
But with no title, a P must show unequivocal and continuous acts of possession
for more than 1 year.
ACQUIRING, LOSING, & RETAINING POSSESSION
Disturbance gives rise to the possessory action
Interruption gives rise not being able to claim possession
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CC Art 3424 – Acquisition of Possession
To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.
Acquiring Possession
1) The element of intent, the intention of becoming a possessor, is in principle, necessary in the very person who
is to possess.
2) The physical element, the acts of enjoyment, which make up the possession, can be carried out by the
possessor himself or by someone who carries it out on behalf of and in the name of the possessor. (e.g., a
precarious possessor)
Losing Possession
(1) Simultaneous Loss of the 2 Elements of Possession
Possession is lost when the 2 elements, which form the possession, disappear at the same time. This is the way it
usually happens, and it takes place in 2 different cases:
Alienation – the old possessor of a thing transmits it to the acquirer who immediately possesses it in his
1)
place.
Abandonment – the possessor throws the thing away, with the intent to give it up.
2)
(2) Loss of the Corporeal Element (corpus)
Possession is lost by losing the corpus while preserving the animus. This takes place
in 2 different cases:
1)
A 3rd party takes possession in fact of a thing.
Without the intent of the possessor, the thing gets away physically from him. For example, if the thing is
2)
an inanimate object, it is misplaced; if the thing is an animal, the animal escapes. In these cases, the possessor has
lost the ability to carry out the physical acts which form possession, and although he still has the intention and
desire to possess the thing, he has lost possession, and his intent does not suffice to preserve it.
This is obviously dependent on the fact that he has not possessed the thing for more than 1 year;
●
(3) Loss of the Element of Intent (animus)
Possession is lost by the loss of the animus alone. Although it is difficult to imagine that a person who has ceased
to have the intent to possess a thing should still carry out the physical acts of possession, this is often the case
when something is sold. The possessor, in selling the thing, agrees to preserve it before it is actually handed over
to the buyer, whereas before, he had held it for his own account. Thus, the true possession belongs to the
purchaser, and the seller, who has preserved the corpus, loses the animus.
(4) Preservation of Possession through Another
Possession can be preserved, just as it can be acquired, through a 3rd person. This is the case with a lessor and a
lessee. The physical acts that make give the possessor his corpus are performed by a 3rd party. (Precarious
Possession)
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(5) Preservation of Immovable Possession Merely by Intent
A possessor, who after having possession of an estate, ceases to perform the acts that make up the corporeal
element of possession, remains the possessor of the estate through the mere fact that he preserves the intent of
possessing it.
But, in order that mere animus preserve possession, it is necessary that the thing remain physically at the disposal
of the possessor. If new facts arise, such as if another person takes possession of the estate and enjoys it
peaceably for 1 year, then the possession is interrupted, and that other person will have success in bringing a
possessory action.
CC Art 3425 – Corporeal Possession
Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.
CC Art 3426 – Constructive Possession
One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within
the limits of his title. In the absence of title, one has possession only of the area he actually possesses.
CC Art 3427 – Presumption of Intent to Own the Thing
One is presumed to intend to possess as owner unless he began to possess in the name of and for another.
CC Art 3428 – Acquisition of Possession through Another
One may acquire possession of a thing through another who takes it for him and in his name. The person taking
possession must intend to do so for another.
CC Art 3429 – Exercise of Possession by Another
Possession may be exercised by the possessor or by another who holds the thing for him and in his name. Thus, a
lessor possesses through his lessee.
CC Art 3431 – Retention of Possession; Civil Possession
Once acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess
corporeally. This is civil possession.
CC Art 3432 – Presumption of Retention of Possession
The intent to retain possession is presumed unless there is clear proof of a contrary intention.
CC Art 3433 – Loss of Possession
Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by
force or usurpation.
CC Art 3434 – Loss of the Right to Possess
- The right to possess is lost upon abandonment of possession. In case of eviction, the right to possess is lost if
the possessor does not recover possession within a year of the eviction.
- When the right to possess is lost, possession is interrupted.
CC Art 3465 – Interruption of Acquisitive Prescription
- Acquisitive prescription is interrupted when possession is lost.
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- The interruption is considered never to have occurred if the possessor recovers possession within 1 year or if
he recovers possession later by virtue of action brought within the year.
The Court established that when there is corpus (physical possession/detention), the intent to possess
●
as owner is presumed, and the other party has the burden of proving otherwise (CC Art 3427).
The animus requirement for possession has to do with the subjective intent of the one who claims to
●
possess.
The courts conclude that P’s constructive possession (via title) was interrupted by Domingue’s corporeal
possession (or ∆’s civil possession via lease) for more than 1 year, so therefore, because later corporeal possession
ousts prior constructive possession, P has no action against Domingue. Further, P loses because he filed a
possessory action too late – it came 1 year and 1 month after discovering Domingue’s changes to the property.
Regardless of whether ∆ had civil possession, it had been enough time for Domingue to re-establish the
●
right to possess through his corporeal possession.
●
Liner v. LA Land & Exploration Co.
Issue: Whether there was a loss of the corpus when ∆ came in and attempted to maintain the property for
themselves, and whether there was a loss of corpus when the P permitted the gas company to install a pipeline, or
when P permitted the seismographic company come in and run tests.
Holding: The court held that these disturbances by ∆ and others were not a usurpation of Liner’s property rights
because Liner continually returned to the property and removed ∆’s boundary stakes. This showed the intent to
possess as owner (animus) and it showed the corpus also (because he physically removed the stakes, turned the
∆’s ditch into his own water storage for his cattle). Thus, Liner (P) did not lose his right to bring a possessory
action.
LLE’s (∆’s) activities were MERE DISTURBANCES (as opposed to usurpation); they (∆) only merely
●
disturbed P because P continually manifested the corpus and the animus to keep his possession.
P’s possession of the disputed property satisfies all the requirements for bringing the possessory action.
●
Although P had no record title to the land (proving ownership), (1) he had corporeal possession of the property
for many years, (2) and the quality of his possession was that of owner; and his possession extended to visible
boundaries.
“Mere Disturbances” short of eviction do NOT interrupt possession; rather they give P a right to bring a
●
possessory action within the next year. If P does not bring the action, it does not affect his possession; but, P must
wait until the next disturbance to be allowed to bring action again.
If the former possessor lets this period (1 year) lapse without any act of enjoyment or any claim for return of
●
possession, he is considered as having lost it, whether he did or did not know of the adverse occupancy. One
may possess quietly and without interruption for more than one year so as to be entitled to bring possessory
action, even though during that year disturbances in fact or law have occurred. Under the CC, possession is not
interrupted when it is merely disturbed. A possessor does not lose possession against his consent unless he is
forcibly expelled or unless the disturber usurps possession and holds it for more than a year. In order for the ∆ to
win here, they would have had to cause more than a mere disturbance, thus causing P to be evicted from the land –
that would be considered usurpation, and enough to have P’s possession sufficiently disturbed.
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The occasional encroachment of a lawnmower is not sufficient indication that one’s possession is
●
endangered.
For a disturbance to be sufficient to interrupt another’s right to possess, the disturbance must bring home to
●
the actual possessor the realization that his dominion is being seriously challenged. A fence is a sufficient
interruption because it makes aware that the other’s dominion was being challenged.
TRANSFER OF POSSESSION; TACKING
CC Art 936 – Continuation of the Possession of Decedent
- The possession of the decedent is transferred to his successors, whether testate or intestate, and if testate,
whether particular, general, or universal legatees.
- A universal successor continues the possession of the decedent with all its advantages and defects, and with no
alteration in the nature of the possession.
- A particular successor may commence a new possession for purposes of acquisitive prescription.
CC Art 3441 – Transfer of Possession
Possession is transferable by universal title (everything is included) or by particular title ( sale of a particular
thing; can create a new period of time for acquisitive prescription).
CC Art 3442 – Tacking of Possession
The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.
Requirements for Tacking
1.
Juridical Link (through legal action) such as inheritance, sale, or donation.
2.
No interruption of possession; there cannot be interruption of time where you lose the right of possession
and then try to credit past time to the successive possessor.
3.
Both possessors must be free of vice.
CC Art 3443 – Presumption of Continuity of Possession
One who proves that he had possession at different times is presumed to have possessed during the intermediate
period.
CC Art 3444 – Possessory Action
- Possession of immovables is protected by the possessory action, as provided in Articles 3655 through 3671 of
the Code of Civil Procedure.
- Possession of movables is protected by the rules of the Code of Civil Procedure that govern civil actions.
The term “Possessory Action” is only applicable to Immovables. There has to be possession, plus disturbance
of the possession, for possessory actions to take place. The disturbance can be in fact or in law. Once the
disturbance occurs, the possessor has 1 year to bring the possessory action against that particular disturbance. A
possessory action does not concern ownership (or who has good title). A possessory action is only concerned
with possession, and who has it.
It is better to bring the possessory action first, rather than the petitory action. This is because a petitory action is
often difficult to prove, whereas the possessory action can be proven by objective facts and testimony of physical
possession, etc.
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Elements Required for Possessory Action (CCP Art 3658)
1)
Possession at the Time of the Disturbance;
2)
Possession quietly without interruption for 1 year prior to disturbance;
There are exceptions. Even if the person has possessed for less than a year, and he then gets evicted
●
from his property by force or fraud, then the 1 year requirement is waived);
3)
Disturbance in Fact or in Law (Definitions);
Disturbance in Fact: is an eviction, or any other physical act which prevents the possessor of
immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle
in the way of that enjoyment.
●
Disturbance in Law: is the execution, recordation, registry, or continuing existence of record of any
instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real
right therein, or any claim or pretension of ownership or the right to the possession thereof except in an action or
proceeding, adversely to the possessor of such property or right. Recordation that goes against the possessors
claim is a frequent example.
●
4)
File a Possessory Action within 1 year of disturbance.
Louisiana CODE OF CIVIL PROCEDURE on Possessory Actions
CCP Art 3655 – Possessory Action
The possessory action is one brought by the possessor of immovable property or of a real right therein to be
maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be
restored to the possession or enjoyment thereof when he has been evicted.
CCP Art 3658 – Possessory Action; REQUISITES
To maintain the possessory action, the possessor must allege and prove:
He had corporeal possession of the immovable property or real right therein at the
1)
time the disturbance occurred;
Had such possession quietly and without interruption for more
2)
than 1 year immediately prior to the disturbance, unless evicted by force or fraud;
3)
The disturbance was one of fact or in law, as defined in CCP Art 3659; and
4)
The possessory action was instituted within 1 year of the disturbance.
CCP Art 3659 – Disturbance in Fact and in Law Defined
Disturbances of possession, which give rise to the possessory action, are of 2 kinds: disturbance in fact and
disturbance in law.
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Disturbance in Fact: is an eviction, or any other physical act which prevents the possessor of immovable
property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way
of that enjoyment.
●
Disturbance in Law: is the execution, recordation, registry, or continuing existence of record of any
instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real
right therein, or any claim or pretension of ownership or the right to the possession thereof except in an action or
proceeding, adversely to the possessor of such property or right. Recordation that goes against the possessors
claim is a frequent example.
●
CCP Art 3662 – Relief which may be Granted to successful P in Judgment; Appeal
A judgment rendered for P in a possessory action shall:
1)
Recognize his right to the possession of the immovable property or real right therein, and restore him
to possession thereof if he has been evicted, or maintain him in possession thereof if the disturbance has not been
an eviction.
2)
Order the ∆ to assert his adverse claim of ownership of the immovable property or real right therein in
a petitory action to be filed within a day to be fixed by the court not to exceed 60 days after the judgment becomes
executory, or to be precluded thereafter from asserting the ownership thereof, if the P has prayed for such relief;
3)
Award the P damages to which he is entitled and which he has prayed for.
In Sum, Possessory Actions (for Immovables):
Only possessor of actual property or possessor of real right may bring a possessory action; a precarious
●
possessor can bring a possessory action in name of the possessor
If P is unable to credibly make a claim of possession, he has to bring an ownership claim (petitory action) to
●
successfully acquire the possession.
P cannot cumulate a petitory action and a possessory action in the same suit, or plead them in the alternative;
●
if P brings a petitory action in the same suit, he waives the possessory action.
Evidence of recorded title (proving ownership) is only admissible in possessory actions for the purpose of
●
proving:
Possession by a party as an owner,
Extent of possession of a party, and
Length of time the party and the ancestors-in-title have had possession.
Title CANNOT be used simply to prove its validity in a possessory action. But, if a P loses in a possessory
●
action, he can then use a title to prove ownership in a subsequent petitory action.
Tacking is used to refer to an accumulation of time (accumulated by different possessors). Where an
●
ancestor-in-title had established the right to possess, that right transfers to his heirs. Similarly, with an act of sale
or even with a gift, if the seller/donor has established the right to possess, then that right transfers to the
buyer/donee.
However, with tacking, there must be a JURIDICAL ACT to show valid transfer. When there is no
●
juridical link (suppose the ancestor dies w/out transferring the property by juridical link), then tacking is not
allowed. When there is no juridical link, you can not combine (accumulated the time of the ancestors-in-title) the
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years possessed by the ancestor-in-title. The most common form of a juridical act is a sale or an inheritance thru a
will.
VICES OF POSSESSION; PRECARIOUS POSSESSION
CC Art 3435 – Vices of Possession
Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect.
CC Art 3436 – Violent, Clandestine, Discontinuous, and Equivocal Possession
- Possession is violent when it is acquired or maintained by violent acts. When the violence ceases, the
possession ceases to be violent.
- Possession is clandestine when it is not open or public, discontinuous when it is not exercised at regular
intervals, and equivocal when there is ambiguity as to the intent of the possessor to own the thing.
CC Art 3437 – Precarious Possession
The exercise of possession over a thing with the permission of or on behalf of the owner or possessor is precarious
possession.
In order to terminate your precarious possession, and start your actual possession, you must give actual
●
notice to the owner/possessor that you now intend to maintain the possession of the thing for yourself.
A precarious possessor is presumed to possess on behalf of another even if he changes his mind and intends
to possess for himself. The presumption is rebuttable.
CC Art 3439 – Termination of Precarious Possession
- A co-owner, or his universal successor, commences to possess for himself when he demonstrates this intent by
overt and unambiguous acts sufficient to give notice to his co-owner.
- Any other precarious possessor, or his universal successor, commences to possess for himself when he gives
actual notice of this intent to the person on whose behalf he is possessing.
There are different requirements for co-owners and precarious possessors when it comes to claiming that you
●
intend to possess for yourself. The precarious possessor must give actual notice, whereas the co-owner (or copossessor) must only show unambiguous acts which show his intention to possess for himself.
CC Art 3440 – Protection of Precarious Possession
Where there is a disturbance of possession, the possessory action is available to a precarious possessor, such as a
lessee or a depositary, against anyone except the person for whom he possesses.
Ineffective Possession:
Discontinuity: Gaps in the possession; when possession is not exercised at regular intervals. Possession is
(1)
continuous “when use is made of it on all occasions and at all times, when it should be.” Thus, possession need
not be literally continual, but only continual in a reasonable manner.
(This is debatable as to whether it still exists, because now civil possession can suffice for rights to possession.)
Violence: Possession is violent when it is acquired or maintained by violent acts. When the violence ceases,
(2)
the possession ceases to be violent.
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Secrecy: To be useful, possession must be public. The possessor must act without hiding himself, as
(3)
generally those do who make use of a right. Possession will be secretive when the possessor attempts to hide his
acts from those who are interested in knowing of them.
Uncertainty: Possession will be uncertain when one of its attributes, such as continuity, intent to possess as
(4)
owner, or public character is doubtful.
e
Classic Example: When there are co-owners; and you don’t know whether a person is possessing for
himself only or for himself and all the other co-owners.
POSSESSORY ACTION
o
Possession at the Time of Disturbance
The P showed that his property (up to the Hollister line) was surveyed and blazed and that he had marked the
line with paint periodically thereafter; thus, this marking, plus the cutting of timber and mineral leases,
satisfied the requirement for “enclosure” as established by the court.
P wins; the cutting of timber and mineral leases were sufficient “enclosure.”
“Enclosure” means that the limit of the property must be established with certainty, either by natural or
●
artificial marks, sufficient to give notice to the world of the extent of his possession.
Corporeal Possession necessary to support prescription is governed by the use of land to which it is destined.
●
What is essential for actual possession changes with nature of the property?
Possessory Acts of P (cutting timber, leasing for minerals, maintaining southern boundary line)
Enclosure (blazing of boundary line, marking with paint)
What sort of possession is the P in when the ∆ builds the fence? He is in corporeal possession because of
the “enclosure” he makes (by painted marks) up to the boundary that he claims. Since this is rural property, this
type of enclosure sufficed for corporeal possession in this case.
● Why is constructive possession not the right argument for P here? Because constructive possession is
only an argument when the land that of the title is easily known and the possessor has only corporeally
possessed a portion of that title land.
●
Possession for 1 year “Quietly and without Interruption”
“One may possess quietly and without interruption for more than a year so as to be entitled to bring a
●
possessory action, even though during that year disturbances in fact or in law have occurred.”
The interruption would have to be eviction by force or usurpation that lasts more than a year in order to
●
sufficiently “disturb” possession.
With the requirement that Liner need to have been evicted for a sufficient disturbance, the court establishes
●
the EXCLUSION REQUIREMENT for disturbances to be sufficient.
How is the right to possess acquired?
A person has a right to possess immovable property by possessing the property quietly and without
●
interruption for more than a year.
The species of possession required to acquire the right to possess is either corporeal possession or civil
●
possession preceded by the corporeal possession of the P or his ancestors-in-title.
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In all cases, a person must possess as owner and for himself. Thus, to acquire the right to possess, one
●
must combine the intention of possessing as owner with the corporeal detention of the thing.
How is the right to possess lost?
A person loses the right to possess immovable property either voluntarily, by transferring or abandoning
●
the property; or involuntarily, by being evicted or expelled for more than 1 year, or by acquiescing in a 3rd party’s
usurpation of the property for more than 1 year.
LA courts have indicated that for a disturbance to be sufficient to interrupt another’s right to possess, the
●
disturbance must bring home to the actual possessor the realization that his dominion is being seriously
challenged.
In addition, the person with the right to possess must acquiesce in the interruption for more than a year
●
without conducting any act of possession or without interfering with the usurper’s possession.
To maintain a possessory action, the possessor must allege and prove that:
1) He had possession at the time of Disturbance…
1.
quietly and without interruption
2.
for more than 1 year
3.
immediately prior to the disturbance
4.
unless evicted by force or fraud;
2) Disturbance was in fact or in law;
3) Action was instituted within a year of the Disturbance.
4) The property has to be susceptible to ownership. Public property is not susceptible.
Disturbance in Fact vs. Disturbance in Law:
Disturbance in Fact: Physical interference with possession that prevents the possessor from enjoying his
possession quietly, or throws an obstacle in the way of enjoyment.
One-year prescription period begins to run from the commencement of the disturbance rather than the
●
completion of the disturbance.
Disturbance in Law: Execution, recordation, registry, or continuing existence of record of any instrument which
asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any
claim or pretension of ownership or the right to the possession thereof except in an action or proceeding,
adversely to the possessor of such property or right.
This is a basis to bring a possessory action, but it does not serve to start the running of the
●
1 year prescriptive period.
Purpose of Possessory Action
A presumption is established in the CC that a possessor is the provisional owner of the object of his possession
until the true owner establishes his right. Should his possession be disturbed, he is entitled, by means of a
possessory action, to be either maintained in or restored to his possession.
In most cases, those in possession of land are the owners, and not squatters attempting to acquire ownership thru
acquisitive prescription. Rather than requiring these rightful owners to carry the heavy burden of proof (and
expense) in establishing ownership, the LA legislature allows one who is disturbed in his possession and who
claims ownership to bring a possessory action against any person who evicts him or disturbs his possession.
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The right to possess is protected by the possessory action not merely for the protection of the presumption of
ownership inherent in possession, but also for protection of all rights attending possession. These rights
include:
Present authority to detain and enjoy
✔
Transferability for value or otherwise
✔
Ownership of fruits gathered during possession and works built on the property possessed,
✔
Reimbursement for expenses incurred by the possessor which inure to the owner’s benefit, and
✔
The right to maintain possession until the owner fully reimburses the possessor.
✔
V. OWNERSHIP; GENERAL PRINCIPLES
CC Art 477 – Ownership
- Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The
owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.
Elements of Ownership
The powers inherent in a full ownership right can be summarized as follows: The owner can at will use or enjoy
his property, dispose of it physically, perform all the legal transactions of which it is susceptible, and exclude all
third parties from any participation in the exercise of his various powers over the property.
When you have “valid title” or “good title,” you have ownership. On the exam, refer to title proving
●
ownership as “valid” title.
TRANSFER OF OWNERSHIP
A.
Immovables
a.
When Effective as Between Parties
i.Immovables are transferred as between parties when they have confected a written agreement and the instrument
of conveyance is filed into public records.
CO-OWNERSHIP
Ownership of the same thing by two or more persons is ownership in indivision.
In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.
(797)
Co-Owner’s Rights
Co-Owner’s Responsibilities
Share of fruits and products of a thing held in
Liable to other co-owners for any damage
●
●
indivision in proportion to their ownership (798)
caused by his fault (799)
When fruits are produced by a co-owner, other coUse and management of thing is
●
●
owners are entitled to their shares of the fruits/products after determined by agreement of all the co-owners
deduction of the costs of production (798)
(801)
To preserve the thing held in indivision w/o
CAN’T prevent another co-owner from
●
●
concurrence from other co-owners. (800)
using thing (802)
Entitled to use of thing according to its destination
If paid for necessary expenses, then entitled
●
●
(802)
to reimbursement from other co-owners according
Has right as sole owner against third persons (802)
to their shares; Necessary = ordinary repairs,
●
maintenance, and mgmt (806)
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Consent of all co-owners is needed before making
If incurred expenses and had enjoyment of
●
●
substantial alterations/improvements (804)
thing, reimbursement is reduced in proportion to
May freely lease, alienate, or encumber his share of
value of enjoyment (806)
●
the thing; Consent of all required (805)
NO one may be compelled to hold a thing
●
To demand partition of thing (807)**
with another unless contrary has been provided by
●
The provisions governing co-ownership apply to
law or juridical act (807)
●
other rights held in indivision to the extent compatible with
Commences to posses for himself when he
●
the nature of those rights (818)
demonstrates intent by overt and ambiguous acts
May prescribe thru overt and unambiguous acts
sufficient to give notice to his co-owner (3439)
●
sufficient to give notice to the other co-owners that he
intends to possess for himself; Also applies to universal
successor (3478)
**Partition may be excluded by agreement for up to fifteen years or other period as provided in RS 9:1702 or
other specific law.
CC Art 803 – Use and Management of the Thing in the Absence of Agreement
When the mode of use and management of the thing held in indivision is not determined by an agreement of all
the co-owners and partition is not available, a court, upon petition by a co-owner, may determine the use and
management.
CC Art 810 – Partition in Kind
The court shall decree partition in kind when the thing held in indivision is susceptible to division into as many
lots of nearly equal value as there are shares and the aggregate value of all lots is not significantly lower than the
value of the property in the state of indivision.
CC Art 811 – Partition by Licitation or by Private Sale
When the thing held in indivision is not susceptible to partition in kind, the court shall decree a partition by
licitation or by private sale and the proceeds shall be distributed to the co-owners in proportion to their shares.
Sale the property and divide the money received from the sale equally.
Although a co-owner with 1% ownership in the property and a co-owner with 99% ownership in the property
●
have equal rights with respect to use and management of the property (altering it, etc), unless there is an
agreement otherwise; with management and use rights, their proportional rights in the ownership are not always
easily seen. Their proportional rights in ownership are seen when fruits or products of the property are shared in
proportion to their to percentage of ownership.
In the absence of the ability to partition, the courts can step in and determine the use and management
●
of a thing.
MODES OF ACQUIRING OWNERSHIP
Modes of Acquiring Ownership
1) Transfer of Ownership: Transfer from someone who had valid title;
This is called a Derivative Title because it was derived from a chain of owners with valid title.
●
2) Original Acquisition of Ownership: (acquiring original title): Creation of a New Property Right
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CC Art 523 – Good faith; Definition
An acquirer of a corporeal movable is in good faith for purposes of this Chapter unless he knows, or should have
known, that the transferor was not the owner.
When is someone in good faith? They must not have any knowledge that their acquired thing is actually lost
●
or stolen.
Whether or not a 3rd party purchaser has ownership when purchasing a lost or stolen good is determined by
●
whether or not the purchaser purchased the thing in good faith and at fair value.
CC Art 524 – Recovery of Lost or Stolen Things
- The owner of a lost or stolen movable may recover it from a possessor who bought it in good faith at a public
auction or from a merchant customarily selling similar things on reimbursing the purchase price.
- The former owner of a lost, stolen, or abandoned movable that has been sold by authority of law may not
recover it from the purchaser.
VI. ACCESSION
ACCESSION
Accession/component parts
1.
Merging movables into immovables or other movables;
2.
Itemizes the individual rights of the owner of the immovable and the owner of the movable.
3.
Good faith possessor vs. bad faith possessor – principal thing vs. accessory thing
Accession – Acquisitive Prescription know what is available to the individual
Good Faith Possessor who loses possession (496)
1.
Owner cannot destroy or remove construction – separate immovable;
2.
Owner must give 90 day notice (493) for the removal; or
3.
Reimburse possessor for costs of materials/workmanship; or
4.
Enhanced Value
Bad-Faith possessor who loses possession:
1.
Possessor loses right to claim property;
2.
Owner can destroy or remove at possessor’s expense; or
3.
Costs of materials/workmanship; or
4.
Enhanced Value
Principal thing vs. Accessory
1.
Principal thing – main object, thing permanently attached to the ground
2.
Accessory is a corporeal movable that serves the use or complements the principal thing
Principal thing – determined usually by the most valuable
1.
Determine by most valuable or most bulky if the value is undeterminable
2.
If principal is merged with accessory, the owner of the principal owns the whole thing subject to the rights
of reimbursement to the owner of the accessory thing.
i.Can put a lien on someone’s house if they don’t pay you the value
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Example:
A owns a white satin wedding dress. B, a tailor, sews lace and pearls onto the dress giving it a Vera Wang appeal.
(510)
Example:
A owns a 1966 ford Mustang. The body is in great shape, but needs a paint job. B, a body shop repairman, paints
the car a metallic gray, places black racing striper sown the middle, and puts Goodyear high performance tires on
the car. (A Gone in 60 Seconds look)
CC Art 482 – Accession
The ownership of a thing includes by accession the ownership of everything that it produces or is united with it,
either naturally or artificially, in accordance with the following provisions.
FRUITS & PRODUCTS
CC Art 483 – Ownership of Fruits by Accession
In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits.
CC Art 485 – Fruits Produced by a Third Person; Reimbursement
When fruits that belong to the owner of a thing by accession are produced by the work of another person, or from
seeds sown by him, the owner may retain them on reimbursing such person his expenses.
CC Art 486 – Possessor's Right to Fruits
- A possessor in good faith acquires the ownership of fruits he has gathered. If the owner evicts him, he is
entitled to reimbursement of expenses for fruits he was unable to gather.
- A possessor in bad faith is bound to restore to the owner the fruits he has gathered, or their value, subject to
his claim for reimbursement of expenses.
CC Art 487 – Possessor in Good Faith; Definition
For purposes of accession, a possessor is in good faith when he possesses by virtue of an act translative of
ownership and does not know of any defects in his ownership. 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.
CC Art 488 – Products; Reimbursement of Expenses
Products derived from a thing as a result of diminution of its substance belong to the owner of that thing. When
the owner reclaims them, a possessor in good faith has the right to reimbursement of his expenses. A possessor in
bad faith does not have this right.
CC Art 489 – Apportionment of Fruits
In the absence of other provisions, one who is entitled to the fruits of a thing from a certain time or up to a certain
time acquires the ownership of natural fruits gathered during the existence of his right, and a part of the civil fruits
proportionate to the duration of his right.
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Fruits are what are produced or re-produced from time to time or in successive seasons (ex. Christmas
●
Trees); minerals do not fit into the “fruits” category because they are not produced each year.
Timber is considered a “product” (as are minerals) because they are derived from land as a result of
●
diminution of its substance of the land, and thus, in this case, the removed timber belongs to the owner. (CC Art
488)
ACCESSION FOR IMMOVABLES
ACCESSION
Exceptions and Interpretations
●
While possessors in good faith are reimbursed for their expenses (for either their fruits and/or
reimbursement for extracted products), a possessor in bad faith is not reimbursed. (CC Art 487 – definition of
good faith)
For good faith, there must be an inferior belief (the actual belief that you own the immovable) and
an exterior act (some sort of deed). Without either one of these, there is no good faith.
CC Art 493 – Ownership of Improvements
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.
If the separate owner does not remove them within 90 days after written demand, the landowner acquires
●
ownership of the improvements and owes nothing.
CC Art 493.1 – Ownership of Component Parts
Things incorporated in or attached to an immovable so as to become its component parts under Articles 465 and
466 belong to the owner of the immovable.
CC Art 493.2 – Loss of Ownership by Accession; Claims of Former Owner
One who has lost the ownership of a thing to the owner of an immovable may have a claim against him or against
a third person in accordance with the following provisions.
CC Art 494 – 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.
CC Art 495 – Things Incorporated in, or Attached to, an Immovable, with Consent
- One who incorporates in, or attaches to, the immovable of another, with his consent, things that become
component parts of the immovable under Articles 465 and 466, may, in the absence of other provisions of law or
juridical acts, remove them subject to his obligation of restoring the property to its former condition.
- If he does not remove them after demand, the owner of the immovable may have them removed at the expense
of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of
the workmanship or the enhanced value of the immovable.
CC Art 497 – Constructions by Bad Faith Possessor
When constructions, plantings, or works are made by a bad faith possessor, the owner of the immovable may
keep them or he may demand their demolition and removal at the expense of the possessor, and, in
addition, damages for the injury that he may have sustained. If he does not demand demolition and removal,
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he is bound to pay at his option either the current value of the materials and of the workmanship of the separable
improvements that he has kept or the enhanced value of the immovable.
CC Art 508 & CC Art 509 & CC Art 510
Principal Thing vs. Accessory
Principal Thing—main object, or thing permanently attached to the ground
●
Accessory is a corporeal movable that serves the use or complements the principal thing.
●
Principal Thing and Accessory Thing
1.
The principle thing is usually most valuable or if value is undeterminable, it is the most bulky.
2.
If principal is merged with accessory, the owner of the principal owns the whole thing subject to the rights
of reimbursement to the owner of the accessory thing.
3.
The owner of the accessory may demand that it be separated and returned to him, although the separation
may cause some injury to the principal thing, if the accessory is more valuable than the principal and has been
used without his knowledge.
CC Art 511. Ownership of new thing made with materials of another.
- When one uses materials of another to make a new thing, the thing belongs to the owner of the materials. The
owner is bound to reimburse the value of the workmanship.
- Nevertheless, when the value of the workmanship substantially exceeds that of the materials, the thing belongs
to him who made it. In this case, he is bound to reimburse the owner of the materials their value.
- If the person who made the new thing was in bad faith, the court may award its ownership to the owner of the
materials.
Art. 513. Use of materials of two owners; separation or co-ownership
- When one used partly his own materials and partly the materials of another to make a new thing, unless the
materials can be conveniently separated, the thing belongs to the owners of the materials in indivision. The share
of one is determined in proportion to the value of his materials and of the other in proportion to the value of his
materials and workmanship.
Art. 514. Mixture of materials
- When a new thing is formed by the mixture of materials of different owners, and none of them may be
considered as principal, an owner who has not consented to the mixture may demand separation if it can be
conveniently made.
- If separation cannot be conveniently made, the thing resulting from the mixture belongs to the owners of the
materials in indivision. The share of each is determined in proportion to the value of his materials.
- One, whose materials are far superior in value in comparison with those of any one of the others, may claim the
thing resulting from the mixture. He is then bound to reimburse the others the value of their materials.
Art. 515. Recovery of materials or value in lieu of ownership.
- When an owner of materials that have been used without his knowledge for the making of a new thing acquires
the ownership of that thing, he may demand that, in lieu of the ownership of the new thing, materials of the same
species, quantity, weight, measure and quality or their value be delivered to him.
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Art. 516. Liability for unauthorized use of a movable.
- One who uses a movable of another, without his knowledge, for the making of a new thing may be liable for the
payment of damages.
There are 3 different ways that the landowner can repay a good faith possessor for the constructions put on the
●
land. The landowner is bound to keep them and at his option to pay to the possessor either:
1)
The cost of the materials and of the workmanship, or
2)
The current value, or
3)
The enhanced value of the immovable.
Even a bad faith possessor must be reimbursed for constructions, which the other party decides to keep,
●
especially if the construction has the purpose of preserving the property. Ex. Putting up or repairing a
fence
EXAM: Accession questions will be about good or bad faith, who gets the fruits, or products, and only the stuff we covered in
class.
XIII. ACQUISITIVE PRESCRIPTION
Prescription
Acquisitive Prescription
1.
Acquire or obtain;
2.
Pertains to immovable and movables;
3.
Amount of time for possession to convert to ownership depends on the presence or absence of good faith –
title will be indicative of good faith.
i.Ex. Mortgage agreement for property
Liberative Prescription
1.
Liberty or freedom to bring an action within a certain time frame (right of action).
2.
Failure to bring action within the time frame will result in a total bar to bring such action in the future.
Prescription of Non-use
1.
Similar to liberative, but refers to rights of use that one can enjoy if they are exercised within a certain
time. Ex. Usufructs and Servitudes
Acquisitive prescription is a graduated form of possession
1.
Possessory action through passage of time - the possessor wants to be declared rightful possessor
2.
Acquisitive prescription through the passage of time – the possessor wants to be declared the owner.
Possessory
Intent to own
Corporeal Possession
One year
Uninterrupted possession
Public/private
Acquisitive (10)
Just title
Corporeal Possession
Ten years
Uninterrupted possession
Private only
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Tacking
Tacking
There are Three Types of Prescription:
CC Art 3446 – Acquisitive Prescription
Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.
Acquisitive prescription is a form of original acquisition. It is not a transfer of ownership, rather it is a newly
created title that vests the acquirer with all the rights of ownership, no matter how dismembered the prior owners’
ownership was.
Interruption
Interruption occurs when the time you have built up in prescription is wiped out by some action.
Three things interrupt possession:
Commencement of an action by the true owner against the possessor; the true owner either filing suit
1)
against the possessor in the court of proper venue, or actually serving the possessor if the suit is filed in an
improper court.
The possessor acknowledging the true owner; this can be tacit through acquiescence, or express through
2)
verbal or written acknowledgment.
And the loss of possession by the possessor; if you are interrupted in your possession but regain it within
3)
a year then you do not have to start all over for purposes of acquisitive prescription.
CC Art 3450 – Express or Tacit Renunciation
- Renunciation may be express or tacit. Tacit renunciation results from circumstances that give rise to a
presumption that the advantages of prescription have been abandoned.
- Nevertheless, with respect to immovables, renunciation of acquisitive prescription must be express and in
writing.
Ownership and other real rights in immovables may be acquired in 10 or 30 years; movables may be acquired in
3 or 10 years.
IMMOVABLES: 30 YEAR PRESCRIPTION
Requirements for 30 Year Acquisitive Prescription:
1)
Prescriptable Object
This cannot be a thing of the state, of the school board, or of the levee district.
●
Other things of a political subdivision are prescriptable if they are private.
●
2) Possession for 30 Years
Possession extends only to that which has been actually possessed, meaning that a possessor must
●
have corporeal possession at some point to claim 30 years prescription.
For the purposes of tacking, there must be a juridical link and no interruption.
●
IMMOVABLES: 10 YEAR PRESCRIPTION
Requirements for 10 Year Acquisitive Prescription
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There are 4 requirements for 10 YEAR acquisitive prescription.
1)
●
●
There has to be a Object susceptible of prescription:
All private things are susceptible of prescription unless the state owns it.
Common and public things are not susceptible of prescription.
2)
●
●
●
●
●
-
There has to be Just Title. To be a “just title,” the title must be:
a Juridical Act
Translative of Ownership
Written
Facially valid
Registered/Recorded.
Why is this a requirement? Because with AP, there will almost always involve a 3rd party.
Good Faith
3)
Honest Belief that one’s author in the title was the owner of the thing;
●
Reasonable Belief by objective standards;
●
There is always a presumption of good faith;
●
Good faith is only necessary at the moment you begin acquisitive prescription, at the initiation of
●
possession.
4)
●
●
Possession for 10 Years
Both the corpus and animus are necessary for possession.
Corporeal, Civil, and Constructive possession suffice.
JUST TITLE
CC Art 3483 – Just Title
A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real
right. 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.
JUST TITLE
Something that would have granted ownership if it were good (valid) must be formal and registered in the
●
parish where the immovable is located.
“Just Title” does not mean good or valid title.
●
A universal successor has no title of his own; rather, he continues the possession of the deceased who
●
transferred the title to him.
Acts that do not purport to transfer ownership do not support just title. Acts that are declarative rather than
●
translative (i.e., judgments and partitions) do not support just title.
One who possesses under just title may tack his author’s possession to his own.
●
A invalid title can be a “just title” so long as (1) it was properly recorded, (2) is in proper form
●
(facially valid), and (3) looks like it would transfer title, even if it doesn’t. It is immaterial whether the initial
title was a nullity. “When a vendor assumes to sell without title, or a disclosure of the defects in his title, the
vendee in good faith, though holding a non domino, may plead prescription of 10 years.”
In a plea for acquisitive prescription for 10 years, it only matters (with respect to “just title”) if the title
●
you are focusing on is a just title, not the title of your ancestors-in-title, unless you need their time for tacking.
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A title that is absolutely null because of circumstances unrelated to the instrument still supports 10-year
acquisitive prescription because (1) the tax deed appeared on its face to be valid and translative of title, (2) the
purchaser was in good faith and took actual possession.
Although the transfer was absolutely null (state improperly adjudicated the deed), the P still had just title
●
because the transfer of title appeared valid on its face.
GOOD FAITH
CC Art 3480 – Good Faith
For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of
objective considerations, that he is owner of the thing he possesses.
This definition of good faith is limited to matters of prescription. In short, for purposes of prescription,
●
good faith and just title are separate ideas, whereas for purposes of accession, the two ideas are blended.
Good faith is determined in the light of objective considerations. It declares that a possessor is in good faith
●
when he reasonably believes that he is owner of the thing he possesses. The tier of facts thus must ascertain in the
light of objective considerations whether a reasonable person in the position of the possessor could believe
himself to be the owner.
This provision does not affect the public records doctrine. According to Louisiana jurisprudence, an acquirer
●
of immovable property is not charged with constructive knowledge of the public records, nor is he bound to
search the public records in order to ascertain ownership. According to certain decisions, however, an acquirer of
immovable property who knows facts sufficient to excite inquiry is bound exceptionally to search the public
records and is charged with the knowledge that a reasonable person would acquire from the records.
CC Art 3481 – Presumption of Good Faith
Good faith is presumed. Neither error of fact nor error of law defeats this presumption. This presumption is
rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses.
CC Art 3482 – Good Faith at Commencement of Prescription
It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of
prescription of ten years.
At what moment is good faith necessary? Good faith is necessary solely at the moment of acquisition. It
●
follows from this that bad faith, arising during the course of prescription by discovery of the error, does not
prevent the possessor from the prescription of 10 years.
In order to be in good faith, “a possessor must have legitimately and reasonably believed that the person from
●
whom he acquired title was the true owner of the property.”
POSSESSION FOR ACQUISITIVE PRESCRIPTION
CC Art 3476 – Attributes of Possession
- The possessor must have corporeal possession, or civil possession after corporeal possession, to acquire a
thing by prescription.
- The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.
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CC Art 3478 – Termination of Precarious Possession; Commencement of Prescription
- A co-owner, or his universal successor, may commence to prescribe when he demonstrates by overt and
unambiguous acts sufficient to give notice to his co-owner that he intends to possess the property for himself. The
acquisition and recordation of a title from a person other than a co-owner thus may mark the commencement of
prescription.
- Any other precarious possessor, or his universal successor, may commence to prescribe when he gives actual
notice to the person on whose behalf he is possessing that he intends to possess for himself.
The registration of an adverse title has been held to be sufficient notice to co-owners of the intent to
●
possess property for oneself. This requires the co-owners to check the public record at least once every 10 years.
Is this feasible?
CC Art 3479 – Particular Successor of Precarious Possessor
A particular successor of a precarious possessor who takes possession under an act translative of ownership
possesses for himself, and prescription runs in his favor from the commencement of his possession.
●
Corporeal, Civil, and Constructive Possession are all relevant to Acquisitive Prescription.
Veritable Possession is the possession capable of leading to Acquisitive Prescription.
●
The possessor must have had physical detention of the thing, and the intention of possessing as owner
(acting as its master); and possession must be free of any defect capable of making it useless.
The payment of taxes is sufficient to “announce to the world” a possessor has the intent to preserve
●
possession, but the payment of taxes does not constitute corporeal possession.
Corporeal possession necessary to support prescription must be in line with the use for which the land is
●
destined, in order to “give to notice the world.”
Possession by a Precarious Possessor (even for less than 1 year) will suffice to give corporeal
●
possession to the person for whom the precarious possessor is possessing.
In order for tacking to apply, the possession between the possessor and ancestor-in-title must be
●
continuous and uninterrupted.
Succession by particular title (sale) begins new possession, but there can be tacking to cumulate possession
●
time. With a particular successor, the individual acquires title by particular title; he commences a new possession,
which is separate and distinct from the author’s possession. With a new possession, there is a new
determination of acquisitive prescription requirements.
A particular successor can tack to the previous possessor and obtain good faith.
10 year acquisitive prescription fails if there are any bad faith gaps in the chain of possession.
Tacking is allowed to acquisitively prescribe if the successive possessions are of the same nature (good
and/or bad faith).
A universal successor does not “tack” because his possession is a continuation of the deceased’s possession.
●
A universal successor is bound by the author’s good/bad faith and is powerless to alter prescriptive rights
transferred to him.
If a universal heir is in bad faith at the moment the title is transferred to him, it does not matter as long as
the decedent had good faith.
Tacking Principles – Good Faith & Bad Faith
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There can be no gaps in possession. Civil possession should suffice, but sometimes it does not if the
●
landowner does not intend to possess as owner. (Funderburk)
The Author and the Successor must share the statutory characteristics required.
●
10 year acquisitive prescription fails if there are any bad faith gaps in the chain of possession.
●
There must be a juridical link – a sale, donation, etc.
●
●
Particular Title (by sale, donation, or particular legacy):
A (good faith and just title for 7 yrs.) + B (only needs good faith Pos. for 3 yrs.) = 10 yrs.
A (good faith for 2 yrs.) + B (if in bad faith, needs 28 yrs.) = 30 yrs.
A (bad faith for 2 yrs.) + B (if in bad faith, needs 28 yrs.) = 30 yrs.
Essentially, if you are in bad faith, you need 30 yrs. possession for acquisitive prescription, and you can
⮚
tack back either to good faith or bad faith possessors. If you are a good faith possessor, you only need 10 yrs.
possession for acquisitive prescription.
If A is in bad faith for 7 years, and B, the successor, is in good faith with just title, he can tack back to A
⮚
for 30 year prescription (because of A’s bad faith), or he can commence a new period of 10 year prescription
(because he is in good faith). The latter option is obviously more preferable to B because he acquires ownership
sooner.
Predecessor (Seller) ð
Good Faith
Good Faith
Bad Faith
Bad Faith
Successor (Buyer) ð
Good Faith
Bad Faith
Good Faith
Bad Faith
RESULT
Both 10 yr. & 30 yr. AP available
If tacking, you can only tack for 30 yr. AP
If tacking, you can only tack for 30 yr. AP
Only 30 yr. AP is available
BUILDING RESTRICTIONS - Art. 775-782
Building Restrictions (Incorporeal Rights) are charges placed on an immovable piece of property that
govern building standards, specified uses, and improvements. Such restrictions must be feasible and capable of
being preserved. These restrictions are designed for subdivision planning (i.e. multi-lot areas)
o
Ex. All houses in this subdivision shall have at least one pool and an adjacent pool houses for pool
equipment
Building restrictions are done by juridical act and executed by the registered owner of the immovable
property or by all owners of the affected immovables. Such restrictions can be amended or terminated accord to
the method instituted by the original restrictions
o
Ex) by majority votes of all homeowners in the affected subdivision.
In the absence of a specified method to amend building restrictions, the restrictions may be amended by a
favorable vote of over ½ of the landowners affected by the restrictions if the restrictions were in effect for more
than 15 yrs and the amendment or terminations must be recorded. It is a 2/3-majority vote if the restrictions were
in effect for more than 10 yrs but less than 15.
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. This is a liberative
prescription time period.
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Building restrictions terminate:
1.
Uncontested violations of the restrictions; or
2.
Abandonment of the entire building restriction plan or a particular restriction; or
3.
Unreasonable, incapable of being preserved or violates public order; or
4.
Majority vote of the affected landowners; or
5.
Ambiguity of the interpretation of the rests
BOUNDARY ACTIONS
A boundary action can be a form of interrupting someone’s possession.
Boundary is a line of separation between two contiguous lands usually in the form of makers, stakes or specific
landmarks or references.
Boundary Actions are usually brought by:
1.
The recorded landowners;
2.
A usufructuary who has the right of use over the land in question (does not automatically bind the naked
owner unless he is a party to the suit);
3.
A person who has corporeal possession of the land.
Lessees or usufructuaries may compel the lessor/naked owner to fix the boundary of the land.
●
The right to bring a boundary or to compel the fixing of the boundary is imprescriptibly.
●
May be fixed by the court (judicially) or between the parties in the dispute (extra-judicially), which must
●
be in writing and has to be filed in the registry of the court.
The parties who decide to fix the boundary extra-judicially each bear their respective costs. If the boundary is set
judicially, then the Code of Civil Procedure will determine all costs. When the boundary is fixed extra-judicially,
the agreement of the parties has the effect of a compromise.
When the boundary has been marked judicially or extrajudicially, one who removes boundary markers without
court authority is liable for damages. He may also be compelled to restore the markers to their previous
location.
The court shall fix the boundary of the parties; if neither party proves ownership, the boundary shall be
●
fixed according to limits established by possession;
A boundary action can be a form of interrupting someone’s possession;
●
When both parties rely on titles only, the boundary shall be fixed according to titles. When the parties
●
trace their titles to a common author preference shall be given to the more ancient title (Better Title Rule);
When a party proves acquisitive prescription, the boundary shall be fixed according to limits established
●
by prescription rather than titles.
PREDIAL SERVITUDES - 735-774
Servitudes: A gratuitous right offered by the owner of immovable property in favor of the public, a specific
person (personal servitude), or to the adjacent landowner (predial servitude).
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USUFRUCTS
Character of Usufructs
May be established...
Real right of limited duration on another’s
By juridical act either inter vivos or mortis causa
●
●
property (535)
= conventional usufruct (544)
Right varies due to the nature of the thing
By operation of law = legal usufruct (544)
●
●
(consumable or non-consumable) (535)
On all kinds of things, movable/immovable,
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Incorporeal thing; Movable or immovable
corporeal or incorporeal (544)
●
depending on the nature of the thing (540)
For a term or under a condition (545)
●
Susceptible to division b/c its purpose is the
Subject to any modification consistent with the
●
●
enjoyment of advantages that are themselves divisible
nature of the usufruct (545)
(541)
In favor of successive usufructuaries (546)
●
May be successive (546)
If by inter vivos: usufructuary must exist or be
●
●
conceived at the time of the execution of the instrument
(548)
If by mortis causa: usufructuary must exist or be
●
conceived at the time of the death of the testator (548)
When spouse dies, surviving spouse has usufruct
●
over the decedent’s share of the community property to
the extent that the decedent has NOT disposed of it by
testament (890)
if decedent leaves NO descendants but is
●
survived by a father, mother, or both and by a brother or
sister, or both of descendents from them, the brothers
and sisters or their descendents succeed to the separate
property of the deceased subject to a usufruct in favor of
the surviving parent or parents (891)
If both parents survive the deceased, the usufruct
●
shall be joint and successive (891)
**Inter vivos means as a gift.
***Mortis causa means done in contemplation of own death.
CONSUMABLES
Things that CANNOT be used w/o being expended or consumed, or w/o their substance being changed (536)
Usufruct’s Rights
Responsibilities
becomes owner of them
at the end of the usufruct, bound to pay the naked owner either the
●
●
(538)
value that the things had at the commencement of the usufruct or deliver to
may alienate, consume,
him things of the same quantity and quality (538)
●
or encumber them as he sees fit
upon disposition, the usufruct is converted into money, and the
●
(538)
usufructuary is bound to pay the naked owner at the end of the usufruct the
**Examples of consumables:
value that the things had at the time of disposition (568)
money, harvested agricultural
at the termination of the usufruct, usufructuary is bound to deliver to
●
products, stocks of merchandise, owner things of the same quantity or quality or the value they had at the
foodstuffs, and beverages
commencement of the usufruct (629)
NONCONSUMABLES
Things that may be enjoyed w/o alteration of their substance, although their substance may be
diminished/deteriorated naturally by time or by the use to which they are applied (537)
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Rights
Responsibilities
Bound to use them as a prudent administrator
●
and to deliver them to the naked owner at the
termination of the usufruct (539)
Does NOT have the right to dispose of non●
consumable things unless the right has been expressly
granted to him (568)
When the usufructuary who has been expressly
●
granted the right to dispose of non-consumable things
sells property subject to usufruct, and there is any tax
owed as a result of the sale, the tax shall be paid from
the proceeds of sale (568)
to posses them and derive the utility, profits,
●
and advantages that they may produce, under the
obligation of preserving their substance (539)
may dispose of corporeal movables that are
●
gradually and substantially impaired by use, wear, or
decay such as equipment, appliances, and vehicles,
provided that he acts as a prudent administrator (568)
***Examples of non-consumables: lands, houses,
shares of stock, animals, furniture, and vehicles
USUFRUCTARY RIGHTS TO...
Fruits
Things that are
●
produced by or derived
from another thing without
diminution of its substance
(551)
Entitled to the
●
fruits of the thing subject
to the usufruct (550)
Commences on the
●
effective date of the
usufruct (554)
If severed during
●
usufruct, belongs to the
usufructuary (555)
Civil fruits accrue
●
day by day and the
usufructuary is entitled to
Thing Itself
Takes things in the
●
state in which they are at
the commencement of the
usufruct (557)
May make
●
improvements or
alterations at his own cost
w/ written consent of the
naked owner (558)
w/o consent of the
●
naked owner, may make
improvements or
alterations w/ approval of
the proper court (558)
extends to
●
accessories at
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Timber
May cut trees
●
growing on the land of
which he has the usufruct
and take stones, sand, and
other materials from it,
but only for his use or for
the improvement or
cultivation of the land
(560)
When the usufruct
●
includes timberlands, the
usufructuary is bound to
manage them as a prudent
administrator. (562)
The proceeds of
●
timber operations that are
derived from proper
Dividends or Servitudes
Cash dividends
●
declared during the
existence of the usufruct
belongs to the
usufructuary (552)
Liquidation
●
dividend or a stock
redemption payment
belongs to the naked
owner subject to the
usufruct (552)
Right to enjoyment
●
of predial servitudes due
to the estate of which he
has the usufruct (562)
When the estate is
●
enclosed w/in other lands
Dylan Workman
them regardless of when
they are received (556)
commencement of the
usufruct (559)
extends to
●
alluvions and derilictions
(563)
rights to
●
mines/quarries are
governed by Mineral code
(561)
if found treasure,
●
entitled to ½ (564)
NO right to the
●
enjoyment of treasure
(564)
management of
timberlands belong to the
usufructuary. (562)
belonging to the grantor of
the usufruct, the
usufructuary is entitled to
a gratuitous right of
passage (565)
**Natural fruits are produced on the earth or of animals (551)
***Civil fruits are revenues derived from a thing by operation of law or by reason of a juridical act such as
rentals, interest, and certain corporate distributions (551)
USUFRUCTUARY
Bound to...
May/Shall...
Restore to owner any corporeal movables that
May make improvements or alterations at his
●
●
are by their nature impaired by use, wear, or decay;
own cost w/ written consent of the naked owner (558)
relieved of obligation if item is completely worn out
w/o consent of the naked owner, may make
●
(569)
improvements or alterations w/ approval of the proper
Responsible for any abuses committed by
court (558)
●
someone who the usufructuary leases, alienate, or
May institute against the naked owner or 3rd
●
encumber s his right to (567)
persons all actions that are necessary to insure the
Answerable for losses resulting from his fraud,
possession, enjoyment, and preservation of his right
●
default, or neglect (576)
(566)
Make ordinary repairs and maintenance for
May lease, alienate, or encumber his right;
●
●
keeping the property subject to the usufruct in good
contract cease of right at the end of the usufruct (567)
order, whether the need for these repairs arises from an
Shall cause an inventory to be made of the
●
accident, from the normal use of the things, or from his property subject to the usufruct if there no inventory
neglect or fault (577)
then naked owner could prevent entry. (570)
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NOT compel the naked owner to make the
●
extraordinary repairs for which the owner is responsible
(579)
Answerable for all expenses that became
●
necessary for the preservation and use of the property
after the commencement of the usufruct (581)
NOT bound to restore property that has been
●
totally destroyed thru accident or because of age (583)
To pay annual charges imposed during his
●
enjoyment of the property subject to the usufruct, such
as property taxes (584)
To pay extraordinary charges that may be
●
imposed during the existence of the usufruct. If these
charges are of a nature to augment the value of the
property subject to the usufruct, the naked owner shall
reimburse the usufructuary at the end of the usufruct
only for the capital expended. (585)
Responsible to naked owner if losses a predial
●
servitude by nonuse or who permits a servitude to be
acquired on the property by prescription (597)
MUST inform the naked owner if a 3rd person
●
encroaches on the immovable property or violates in
any other way the rights of the naked owner;
answerable to damages suffered if they do NOT inform
(598)
When usufruct includes a herd of animals,
●
bound to use it as a prudent administrator and replace
animals that die (599)
To deliver the property to the owner with its
●
accessories and fruits produced since the termination of
the usufruct (628)
At the termination of a usufruct of consumables,
●
the usufructuary is bound to deliver to the owner things
of the same quantity and quality or the value they had at
the commencement of the usufruct (629)
Shall give security that he will use the property
●
subject to the usufruct as a prudent administrator and
that he will faithfully fulfill all the obligations imposed
on him by law or by the act that established the
usufruct unless security is dispensed with; if security is
required then court may order it provided it is in
accordance with the law. (571)
May release himself from the obligation of
●
making repairs by abandoning the usufruct to, with the
approval of the court, a portion thereof, even if the
owner has instituted a suit to compel him to make
repairs or bear the expenses of them, and even if the
usufructuary has been cast in judgment (582)
May NOT release himself from the charges of
●
the enjoyment during the period of his possession, nor
from the accountability for the damages that he, or
those he is responsible for, may have caused (582)
May dispose of individual animals of the herd;
●
Must replace value at the end of the usufruct (600)
May also dispose of the herd or a substantial
●
part of it as long as they act as a prudent administrator
(600)
May remove all improvements he made; MUST
●
restore (601)
May NOT claim compensation for
●
improvements that he does not or cannot remove (601)
May set off against damages due to the owner
●
for the destruction or deterioration of the property
subject to the usufruct the value of the improvements
that cannot be removed (602)
May NOT establish on the estate of which he
●
has the usufruct any charges in the nature of predial
servitudes
OTHER NOTES ABOUT USUFRUCTUARIES:
I.CC Art 578 – Ordinary and extraordinary repairs
–
Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property
subject to the usufruct. All others are ordinary repairs.
NAKED OWNER
Bound to...
May/Shall
Responsible for extraordinary repairs, unless they
May compel usufructuary to make the repairs
●
●
have become necessary as a result of the usufructuary’s
they are responsible for (579)
fault or neglect makes usufructuary bound instead
If incurred necessary expenses before the
●
(577)
usufructuary comes into possession, may claim cost
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NOT bound to restore property that has been
●
completely destroyed (583)
If elects to do extraordinary repairs then MUST
●
do so within a reasonable time and with the least
inconvenience to the usufructuary (583)
MUST NOT interfere w/the rights of the
●
usufructuary (605)
May NOT make alterations/improvements (606)
●
Held to loss if entire herd perishes without fault
●
of the usufructuary (599)
from the usufructuary or retain possession of the
things until paid (580)
Reimburse usufructuary at the end of the
●
usufruct for capital expended in augmenting the value
of the property (585)
May dispose of naked ownership (603)
●
May alienate or encumber the property subject
●
to the usufruct ONLY w/o affecting it (603)
May establish real rights on the property but
●
ONLY if exercised w/o injury to the usufructuary
(604)
Upon termination of usufruct, may demand,
●
w/in one year from receipt of proceeds from
usufructuary, that the money be safely invested subject
to the right of the usufructuary; may be determined by
the court if parties cannot agree (618)
May terminate usufruct if usufructuary
●
commits waste, alienates things w/o authority, neglects
to make ordinary repairs or abuses his enjoyment in
any manner (623)
Full ownership is restored upon termination of
●
a usufruct over nonconsumables for a cause other than
total and permanent destruction of the property (628)
Owner is entitled to the value of the property if
●
property has been lost or deteriorated thru the fault of
the usufructuary; does not have to wait until the end
(628)
May establish a predial servitude that does
●
NOT infringe on the usufructuary’s rights or does
NOT take effect until the end of the usufruct (710)
**Extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property
subject to the usufruct (578)
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SECURITY
Description
Usufructuary shall give
●
security of the property as a prudent
administrator and that he will fulfill
the obligations imposed on him by
law or by the act establishing the
usufruct UNLESS the security is
dispensed with (571)
Security shall be in the
●
amount of the total value of the
property (572)
Court may increase or reduce
●
the amount of the security, on proper
showing, but the amount shall NOT
be less than the value of the movable
subject to the usufruct (572)
Dispensed by Operation of law
When a person has a legal
●
usufruct under 223 or 3252 (573)
When a surviving spouse
●
has an 890 usufruct unless the
naked owner is not a child or the
usufructuary or unless the naked
owner is a forced heir of the
decedent even though they are a
child of the usufructuary (573)
When a parent has a 891
●
usufruct unless the naked owner is
NOT a child of the usufructuary
(573)
When a surviving spouse
●
has a 2434 usufruct unless the
naked owner is a child of the
decedent but NOT a child of the
usufructuary (573)
Sellers or donors of
●
property under reservation of
usufruct are NOT required to give
a security (573)
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Other Features
Delay in giving security does
●
NOT deprive the usufructuary of the
fruits from the property since the
commencement of the usufruct (574)
If usufructuary fails to give
●
security, a proper court may order
that the property be delivered to an
administrator appointed in
accordance with 3111-3113 for
administration on behalf of
usufructuary (575)
Administration terminates if
●
usufructuary gives security (575)
A creditor of the usufructuary
●
may intervene and prevent
termination of the usufruct or deliver
of the property to the naked owner
by offering to repair the damages
caused by the usufructuary and by
giving security for the future (625)
Dylan Workman
USUFRUCT
Terminates...
Upon death of usufructary (607)
●
If given to entity, when entity ceases to exist or
●
upon a thirty years lapse from date of commencement
of usufruct (608)
Legacy of revenues from specified property is a
●
kind of usufruct and terminates upon the death of the
legatee unless a shorter period has been expressly
stipulated (609)
Upon the term/condition stipulated to terminate
●
(610)
When usufructuary delivers/transfers usufruct to
●
another person (611)
Usufruct of nonconsumables terminates by the
●
permanent/total loss, extinction or destruction thru
accident or decay of the property (613)
By prescription of nonuse (10 yrs) if the
●
usufructuary nor any other person acting in his name
exercises the right; applies whether the usufruct has
been constituted on an entire estate, divided or
undivided shares (621)
By confusion when the usufruct and the naked
●
ownership are united in the same person (622)
By the naked owner if the usufructuary commits
●
waste, alienates things without authority, neglects to
make ordinary repairs, or abuses his enjoyment in any
manner (623)
Court may decree termination or delivery to the
●
naked owner on the condition that he shall pay to the
usufructuary a reasonable annuity until the end of the
usufruct; amount based on the value of the usufruct
(624)
By an express written renunciation; creditor of
●
the usufructuary may cause to be annulled a
renunciation made to his prejudice????(626)
Continues...
If granted until a third person reaches a certain
●
age, if the person dies it continues until the person
would have reached the designated age (612)
When any loss, extinction or destruction of
●
property subject to usufruct is attributable to the fault of
a third person, the usufruct does NOT terminate but
attaches to any claim for damages/proceeds (614)
If usufruct changes form w/o act of
●
usufructuary; even if property no longer serves its use
(615)
If property is converted into money or other
●
property w/o act of usufructuary, attaches to the money
or other property (i.e. liquidation of a corporation)
(615)
When sold thru act of partition or agreement,
●
attaches to sale proceeds unless parties contract
otherwise (616)
When proceeds of insurance or due on account
●
of loss, extinction or destruction of the property,
usufruct attaches to the proceeds; if separately insured
goes to insured party (617)
A usufruct by donation mortis causa is NOT
●
considered as revoked merely because the testator has
made changes in the property after the date of his will
(619)**
If naked owner sells property or enforces a
●
mortgage (620)
The judicial sale of the usufruct by creditors of
●
the usufructuary deprives the usufructuary of his
enjoyment of the property but does NOT terminate the
usufruct (620)
If title annulled for some previously existing
●
defect or some vice inherent in the act (622) ????
Termination can be prevented by giving a
●
security to insure that the usufructuary will take
appropriate corrective measures w/in a fixed period set
by the court (624)
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PREDIAL SERVITUDES
A predial servitude is a charge on a servient estate for the benefit of a dominant estate;
MUST belong to different owners (646)
Neither contiguity nor proximity of the two estates is necessary for the existence of a predial servitude;
Suffices to derive a benefit from the other (648)
A predial servitude is an incorporeal immovable (649)
Servitude may come with restrictions (652)
Servient Estate...
Dominant Estate...
NOT required to do anything; obligation =
Predial servitude is inseparable from the estate
●
●
abstain from or permit something to be done on his
and passes with it; right CANNOT be alienated, leased,
estate (651)
encumbered separately from the estate (650)
May be required by convention or by law to
MUST benefit the dominant estate; benefit does
●
●
keep his estate in a suitable condition for the exercise of NOT have to exist when servitude is created; possible
the servitude due to the dominant estate (651)
convenience or future advantages suffices (647)
The predial servitude continues as a charge on
May NOT do anything to render the servitude
●
●
the servient estate when ownership changes (650)
more burdensome (656)
May NOT prevent the flow of water (656)
●
Must keep buildings in good repair (2322)
●
Natural Servitudes
Arise from the natural situation of estates (654)
●
Lower estates are bound to receive the natural
●
flow of water from other estates unless flow was manmade (655)
May NOT do anything to prevent the flow of
●
water (656)
The owner of an estate bordering on running
●
water may use it as it runs for the purpose of watering
his estate or for other purposes (657)
a.
Legal Servitudes
Imposed by law (654)
●
CANNOT deprive neighbor of
●
enjoyment/damage it (667)
Answerable if knew or should have known
●
would damage neighbor’s property; may be prevented
by reasonable care; does NOT affect res ipsa loquitor
(667)
Answerable for ultra hazardous activity (pile
●
driving/blasting)
Able to occasion some inconvenience to
●
neighbor; darkness does NOT = damage (668)
Manufacturers pollution is NOT afforded a
●
servitude (669)
Encroaching buildings are allowed to remain if
●
other owner does not complain when knew or should
have known of encroachment or waits until it is close to
completion; auto-acquires servitude and may pay
compensation for value of land or any damage caused
(670)
737 – Renunciation of servitude by owner of dominant estate
– The owner of the dominant estate may renounce the contract by which a predial servitude was acquired for the
benefit of his estate, if he finds the contract onerous, and if the contract was made without his authority or while
he was incompetent.
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CONVENTIONAL/VOLUNTARY SERVITUDES
Established by juridical act, prescription, or destination of the owner (654)
Type of Servitude
Description
Support (700)
Dominant permitted to rest on wall of servient; servient bound to upkeep unless
abandons the wall
View (701)
Dominant’s right to enjoy view (includes right to prevent raising constructions that
obstruct the view)
Prohibition of View (702) Dominant may prevent or limit openings of view on the servient (702)
Light (703)
Dominant is entitled to make openings in a common wall for the admission of light;
includes right to prohibit neighbor from making an obstruction
Prohibition of Light (704) Dominant can prevent servient from making an opening in his own wall for the
admission of light or that limits him to certain lights only
Passage (705)
Persons, animals, or vehicles are permitted to pass through the servient estate; unless
otherwise provided right is exercised based on the suitable type of traffic necessary to
reasonably use the dominant estate
Affirmative (706)
Give the right to dominant owner to do a certain thing on the servient estate (I.e. right
of way, drip)
Negative (706 & 739)
Impose on the servient owner the duty to abstain from doing something on his estate
May be acquired by title ONLY (including declaration of declaration under Art.
741**)
Apparent (707, 740 &
Are perceivable by exterior signs, works, or constructions (i.e. roadways, window in
742)
common wall)
May be acquired by title, by destination of owner, or by acquisitive prescription
Laws governing acquisitive prescription apply (10 yrs = Just Title and Good Faith; 30
yrs = neither)
Non-apparent (707)
Do NOT have an exterior sign of their existence (i.e. building restrictions on height)
**Destination of the owner is a relationship established between two estates owned by the same owner that would
be a predial servitude if the estates belonged to different persons (741)
***When the two estates cease to belong to the same owner, unless there is an express provision to the contrary,
an apparent servitude comes into existence of right, and a non-apparent servitude comes into existence if the
owner has previously filed for registry in the conveyance records of the parish in which the immovable is located
a formal declaration establishing the destination (741)
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RIGHT OF PASSAGE
Owner of Enclosed Estate...
If NO access to a public road, may claim right
●
of passage over neighboring property to the nearest
road; bound to any damages (689)
May construct on the right of way the type of
●
road or railroad reasonably needed to exercise servitude
(691)
May NOT demand right of passage wherever he
●
chooses; passage will be on the shortest route and at the
least injurious location to the intervening lands (692)
Neighbors are NOT bound to furnish a passage
●
if enclosed voluntarily (693)
NO right to relocation of the servitude after
●
fixed (695)
Owner of Servient Estate...
When in the case of partition or a voluntary
●
alienation of an estate or a part thereof, property
alienated or partition 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 (694)
Right to demand relocation of servitude to a
●
more convenient place at his own expense (695)
Right for indemnity against the owner of the
●
enclosed estate may be lost by prescription (accrual of
prescription has NO effect on the right of passage)
(696)
**The right of passage shall be suitable for the kind of traffic that is reasonably necessary for the use of the estate
(690)
Rights of the Dominant Estate:
Use and preservation
●
o
To make all necessary expenses (744)
o
To enter w/workman and equipment into part of servient estate that is needed for required
constructions/repairs; may deposit material but must remove and restore once done (745)
o
If servitude bind servient owner to make necessary repairs, he may abandon estate or part servitude is
granted to exonerate himself (746)
If dominant is divided, servitude remains due to each part, provided no additional burden is imposed on
●
the servient (747)
Owner of servient may do NOTHING tending to diminish or make more inconvenient the use of the
●
servitude (748)
If title is silent to the extent/manner of use of the servitude, the intention of the parties is to be determined
●
by purpose (749)
If title does NOT specify location of the servitude, the owner of the servient shall designate the location
●
(750)
When both parties rely on titles ONLY, then boundary shall be fixed according to the titles. When the
●
parties trace their titles to a common author preference shall be given to the oldest one (793)
Duties of the Servient Estate:
1.
Must keep buildings in good repair (Art. 2322);
2.
Cannot interfere with the Dominant Estate Owner’s usage of the servitude;
3.
Can select where the servitude (right of passage) will be placed on his property and the times that it can be
used. Cannot revoke once it is granted.
4.
Usually incurs all costs of maintaining the servitude, but can seek indemnification in certain instances;
5.
Owner of the Servient estate can establish multiple servitudes, but cannot interfere with the servitude for
the dominant estate
6.
Any doubt relative to the existence of a predial servitude is resolved in favor of the owner of the Servient
estate
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7.
Specific language to create a predial servitude is not necessary so long as there the wording indicates a
charge placed on one estate for the benefit of another.
ESTABLISHMENT OF A PREDIAL SERVITUDE BY TITLE
Established by all acts that allow immovables to be transferred (722)
●
May be established
●
o
On public things including property of the state, its agencies and political subdivisions (723)
o
On several estates for the benefit of one estate (724)
o
One estate may be subjected to a servitude to benefit several estates (724)
o
On a building not yet in existence (726)
o
By agreement of parties before ownership is acquired (726)
Is an alienation of a part of the property to which the laws governing alienation of immovables apply (708)
●
A mandatary may establish a predial servitude if he has an express or special power to do so (709)
●
Naked owner may establish a predial servitude; CANNOT infringe on usufructuary’s rights and consent is
●
required (710)
Usufructuary may NOT establish any charges on the estate (711)
●
If person has ownership for a term, predial servitude ceases with his right (712)
●
MUST be consented to by all co-owners (714)
●
Owner of servient may establish additional servitudes provided they do not affect the dominant estate
●
(720)
The title that establishes a servitude for the benefit of the dominant estate may also establish a servitude on
●
the dominant estate for the benefit of the servient estate (725)
Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of
●
the servient (730)
When the act does NOT declare expressly that the right granted is for the benefit of an estate or for the
●
benefit of a particular person, the nature of the right is determined in accordance with the following rules:
o
When the right granted confers an advantage on an estate = predial servitude
o
When right granted is merely for the convenience of the person it is NOT considered a predial servitude
UNLESS it is acquired by a person as owner of an estate for himself, his heirs and assigns
Creation of Predial Servitude (By Title):
1.
Non-Apparent Predial Servitudes must be included in the deed or title to the immovable property and said
title must be recorded;
2.
Can only be established by the registered owner(s) of the Servient estate – all co-owners must agree to the
servitude;
3.
If the person’s ownership is conditional then the servitude is conditional.
4.
A predial servitude is permitted on public property because ownership is not an issue.
5.
There can be multiple servitudes for the benefit of one estate, and there can be reciprocal servitudes (Art.
725)
6.
Predial servitudes can be established conditionally.
Who can acquire a predial servitude?
1.
The owner of dominant estate, his mandatory or successors. The owner’s interdiction is irrelevant;
2.
Dominant estate owner can renounce said servitude if it is onerous or was done without his authority.
Duties of Dominant Estate Owner:
1.
Can make necessary repairs for the preservation of the servitude;
2.
If there are multiple owners for dominant estate the servitude is available to each of them;
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Dylan Workman
3.
Cannot unduly burden the owner of the Servient estate.
EXTINCTION OF PREDIAL SERVITUDES
Extingished by:
●
o
The permanent and total destruction of the dominant estate or the part of the servient burdened by the
servitude (751)
o
Both estates are acquired in their entirety by the same person - Confusion (765)
o
Dissolution of the right of the person who established it (774)
o
Express and written renunciation by the dominant owner (771)
o
Abandonment of servient (or part where servitude is) MUST be written; dominant bound to accept =
confusion (770)
o
Confusion may be reestablished ONLY in a manner by which a servitude may be created (769)
o
Established for a term/resolutory condition is extinguished upon expiration of term or happening condition
(773)
o
Nonuse for 10 years (753) (Begins to run from date of last use for affirmative servitudes; From the date of
the occurrence of an event contrary to the servitude for negative servitudes)
o
Prescription is NOT suspended due to dominant owner’s construction (756)
NOT Extinguished if:
●
o
Exercise of servitude becomes impossible because the things necessary for its exercise have undergone
such a change that the servitude can NO longer be used; it resumes its effect when things are reestablished so that
they may again be used, unless prescription has accrued (752)
o
If prevented from using servitude by an obstacle (neither removable/preventable) 10yr suspension on
prescription (755)
o
If prevented from use due to the construction of the servient owner (756)
o
Preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant
estate (757)
o
Prescription of nonuse does NOT run against natural servitudes or partial usage (758 & 759)
o
Servitude is suspended when union of two estates is made under resolutory condition or ceases by legal
eviction (766)
o
Until a successor has formally/informally accepted a succession, confusion does NOT take place. If
successor renounces the succession, the servitudes continue to exist (767)
o
NO confusion if servient is owned by one spouse and the dominant is acquired by community assets;
continues (768)
A more extensive use of the servitude than that granted by the title does NOT result in the acquisition of
●
additional rights for the dominant estate unless it comes from acquisitive prescription (760)
The use of a right that is ONLY accessory to the servitude is NOT use of the servitude (761)
●
Use by a co-owner prevents the running of prescription as to all co-owners (762)
●
If partitioned, use of servitude by each owner preserves it for his estate ONLY. (762)
●
Prescription of nonuse is NOT suspended by the minority or other disability of the owner of the dominant
●
estate (763)
When prescription of non-use is pleaded, dominant owner has burden of proof to show that he or another
●
exercised the right appertaining to his estate during accrual time (764)
Renunciation by a dominant co-owner does NOT discharge the servient, but deprives him of right to use
●
the servitude (772)
46
Dylan Workman
HABITATION
●
●
●
●
●
o
The non-transferable real right of a natural person to dwell in the house of another (630)
Established and extinguished in the same manner as the right of usufruct (631)
Right is neither transferable nor heritable; may NOT be alienated, let or encumbered (637)
Terminates at death of person unless a shorter period is stipulated (638)
Regulated by the title that establishes it; if title is silent as to extent then person is regulated by: (632)
may reside in the house with his family, although NOT married at the time the right was granted to him
(633)
o
is entitled to the exclusive use of the house or of the part assigned to him, and, provided that he resides
therein, he may receive friends, guests, and boarders (634)
o
bound to use the property as a prudent administrator and at the expiration of his right to deliver it to the
owner in the condition in which he received it, ordinary wear and tear is excepted (635)
when person occupies whole house, he is liable for ordinary repairs, pmt of taxes, and for other annual
●
charges in the same manner as a usufructuary (636)
when person occupies a part of the house, he is liable for repairs to his part and for all other expenses and
●
charges in proportion to his enjoyment (636)
RIGHT OF USE
Confers in favor of a person a specified use of an estate less than full enjoyment (639)
●
May confer ONLY an advantage that may be established by a predial servitude (640)
●
May be established in favor of a natural person or a legal entity (641)
●
Includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that
●
may later become necessary, provided that a greater burden is NOT imposed on the property unless otherwise
stipulated in the title (642)
Is transferable unless prohibited by law or contract (643)
●
NOT extinguished by death or dissolution unless the contrary is provided by law or contract (644)
●
Regulated by application of the rules governing usufruct and predial servitudes to the extent that their
●
application is compatable with the rules governing a right of use servitude (645)
47