Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
151 Cards in this Set
- Front
- Back
|
Matrimonial Agrmts - Form
1 |
authentic act or act under private signature duly acknowledged by the spouses (i.e. signed by parties who thereafter acknowledge sigs in presence of notary and 2Ws)
|
|
|
Matrimonial Agrmts - Scope
2 |
any matter that isn’t prohibited by public policy
• CAN provide for parties’ respective contributions to marital expenses, apportionment of CP by fixed shares, reservation of fruits as SP, provide that spouse’s existing/future prop shall be subject to mat reg (may be a donation) • CANNOT waive interim SS, reduce marital portion, renounce/alter established succ order, limit w/ respect to third parties rt 1 spouse has under leg regime to act alone to alienate, encumber, lease CP |
|
|
Matrimonial Agrmts - When
3 |
If b/4 marriage, freely & w/o court approval. If during marriage, depends on domicile:
• Spouses domiciled in La→ by joint petition & finding by ct that it serves best interests & they understand • Spouses moving to La→ freely & w/o ct approval during 1st year of domicile in La • Minors must have consent of parents, tutor/parent w/ custody unless fully emancipated |
|
|
Legal Regime of Community Prop - When Used
4 |
(default rules used is no pre-nup)
|
|
|
Legal Regime of Community Prop - Application
5 |
applies to spouses domiciled in La, regardless of domicile at marriage or place of ceremony
• BUT, even if not La domiciliaries, La choice of law provisions may be applicable |
|
|
Legal Regime of Community Prop - Ownership
6 |
Each Spouse owns a present undivided one-half interest in the CP. Can’t lease interest
|
|
|
Legal Regime of Community Prop -
Classification of Property 7 |
FIXED at Acquisition (when ownership passes)
|
|
|
Legal Regime of Community Prop -
CP 8 |
prop acquired through spousal effort, prop acquired w/ comm. things, joint donations and fruits of comm. property, damages awarded for loss of CP, all non-SP
|
|
|
Legal Regime of Community Prop -
SP 9 |
prop acquired prior to leg regime, prop acquired w/ SP, prop inherited/donated to him individually, damages for mismanagement of comm., damages to SP, things acquired by spouse via voluntary partition of comm. during CP regime
|
|
|
Legal Regime of Community Prop -
CP Presumption 10 |
things in spouse’s possession during existence of community are presumed to be CP, but either spouse may prove they are separate by a POE.
|
|
|
Legal Regime of Community Prop -
General Rule 11 |
no mixed titles.
Exception→If spouse owns undivided interest in thing as SP, and acquires addit’l interest in thing as CP→orig undivided interest remains SP and newly acquired CP interest is CP (and v/v) |
|
|
Legal Regime of Community Prop -
Interspousal Donations & Other Trx 12 |
(can be onerous or gratuitous)
CP→SP (transfer of undivided interest to SP) • The whole thing becomes the donee’s SP • No specific form reqts→so general form reqts for donations apply SP→CP • One half of the SP is transferred to donee and donor keeps other half as co-owner • Form reqts: ➢ must stipulate that the thing shall be ‘part of the community’ ➢ transfer by onerous title must be in writing; transfer by gratuitous title must be by auth. Act ➢ If mess up form – can still be valid donation – but becomes the donee spouses SP |
|
|
Legal Regime of Community Prop -
Prop acquired w/CP & SP 13 |
CP UNLESS the value of the CP used was inconsequential in comparison w/value of SP used, in which case it’s SP (inconsequential = < 20%)
|
|
|
Legal Regime of Community Prop -
Prop Acquired w/SP 14 |
SP. Ex: W & H buy house by each putting up separate $ toward purchase price. Either spouse may use principal of real subrogation to overcome the presumption of community. If successful, the property will be classified as SP, & each will be a co-owner b/c both put up SP to buy it
|
|
|
Legal Regime of Community Prop -
Principal of Real Subrogation 15 |
if prop converted into another thing, remains SP/CP
• But, a declaration in an act of acquisition that things are acquired w/separate funds as the SP of a spouse may be controverted by the other spouse UNLESS he/she concurred in the act • Nevertheless, an alienation/encumbrance/lease of thing by onerous title can’t be set aside on grounds of falsity of declaration. |
|
|
Legal Regime of Community Prop -
Estoppel by Deed: 16 |
a declaration in an act of acquisition that things are acquired w/separate funds as the SP of a spouse may be controverted by the other spouse UNLESS they concurred in the act or by FH or Cs
• But, an alienat/encum/lease of thing by onerous title can’t be set aside b/c of falsity of declaration. |
|
|
Legal Regime of Community Prop -
Donations/Inheritance 17 |
SP if given to spouse individually (look to intent of donor)
|
|
|
Legal Regime of Community Prop -
Commingling Separate & Community Funds 18 |
don’t lose identity, but spouse claiming portion of account is SP must prove that separate funds were deposited & not w/drawn.
• Difficult if it’s an active account b/c funds can become “hopelessly commingled” • An asset acquired w/commingled funds is CP unless community portion of price is inconsequential (< 20%) compared to the separate portion of price |
|
|
Legal Regime of Community Prop -
Earnings 19 |
prop acquired through effort/skill/industry of spouse is CP if expended during CP regime
|
|
|
Legal Regime of Community Prop -
Fruits & Revenues of SP 20 |
CP (includes minerals, bonuses, delay rentals, royalties, shut-in payments)
• Spouse can prevent this w/Declaration of Paraphernality made in AA or act under private signature duly acknowledged. May be done unilaterally, & is effective w/ delivery of a copy to other spouse prior to filing AND filing: |
|
|
Legal Regime of Community Prop -
Fruits of IMM 21 |
filed in conveyance records of parish where IMM situated
|
|
|
Legal Regime of Community Prop -
Fruits of Movables 22 |
filed in conveyance records of parish of declarant’s domicile
• Ins Policies are juridical acts from which civil fruits may be derived. Renewal commissions received for such policies are earnings to the extent attributable to labor, so they can be part SP & part CP |
|
|
Legal Regime of Community Prop -
Prize $ 23 |
CP if awarded b/c of spouse’s “skill & effort” in, among other things, mailing it 4 submission
|
|
|
Legal Regime of Community Prop -
Prop acquired via Credit Sales 24 |
Classification is based on source of down payment (even if both names are on title) b/c determination is made when title passes, which is upon agreement of thing & price
|
|
|
Legal Regime of Community Prop -
Bond for Deed Ks 25 |
buyer of IMM pays price in installments, title doesn’t pass until final installment paid. If some payments made prior to leg reg and some during, prop is CP if comm. funds contributed to acquisition and aren’t inconsequential
|
|
|
Legal Regime of Community Prop -
Prop from Acquisitive prescription 26 |
should be classified from beginning of RX
|
|
|
Legal Regime of Community Prop -
Pensions 27 |
classified pro rata; CP to extent attributable to effort expended during CP regime
|
|
|
Legal Regime of Community Prop -
Pensions - Defined Contribution Plan 28 |
EE gets sum comprised of contributions to a trust (includes contribution and interest)
• At termination of the community, a determinable sum is credited to the employed spouse • That portion of the total pension attributable to contributions made during legal regime is CP; rest is SP |
|
|
Legal Regime of Community Prop -
Pensions - Defined Benefits Plan 29 |
based on length of service (ex. 80% of salary upon retirement)
• No determinable sum • Sims Formula – portion of pension during comm./ portion of pension of total service = “community fraction” • Hare Variation – when there are extraordinary post termination efforts, court may take it into account and deviate from Sims formula |
|
|
Legal Regime of Community Prop -
Pensions - Federal Preemption 30 |
ERISA preempts conflicting LA community property law; may be entitled to off-set award
• Pension rights can be partitioned years after the general partition. |
|
|
Legal Regime of Community Prop -
Personal Injury Damages 31 |
→ if sustained during existence of community (including WC) →are SP except for:
• Portion of damages attributable to expenses incurred by comm. as a result of injury→CP • Medical expenses attributed to injury & lost wages accruing during community→CP |
|
|
Legal Regime of Community Prop -
Life Insurance k’s 32 |
policy proceeds payable at death are beneficiary’s SP. Policy CP if acquired during marr
|
|
|
Legal Regime of Community Prop -
Intellectual Property 33 |
CP to extent is attributable to work while in CP. Goodwill of biz- CP unless attrib to 1 spouse
|
|
|
Mgmt of CP - General Rule
34 |
Equal Management: each spouse acting alone may manage, control, or dispose of CP
|
|
|
Mgmt of CP - When Concurrence of Both Spouses Needed
35 |
Exceptions Swallow Rule
• (1) Alienation of Community Property – concurrence required for alienation of immvoables, timber, furniture, assets of community enterprise and registered movables • Limitations … encumbrances imposed by law such as liens don’t need concurrence; only applies to business entities that are not “legal entities” • (2) Donations – donations of CP to 3P requires concurrence unless a “usual or customary gift” • Except … When One Spouse Can Act Alone Despite Concurrence Requirement • Ratification – spouse can ratify alienation by the other spouse • Renunciation of Right to Concur – spouse may expressly renounce the right to concur • Judicial Authorization to Act W/o Concurrence of Other Spouse – may get ct authorization if show: ➢ (1) such action is in the best interest of the family ➢ (2) other spouse arbitrarily refuses to concur or can’t concur due to incapacity or absence • When spouse has exclusive right to manage CP |
|
|
Mgmt of CP - When One Spouse Has the Exclusive Right to Manage Community Property
36 |
3 situations
• (1) when spouse is sole manager of a comm enterprise (not legal entity), may alienate mov assets of biz • (2) can alienate movables registered in his own name (stocks, bank accts, cars) • (3) if partner or member of LLC, can alienate partnership or LLC interest • Exception … can get judicial authorization to alienate these things if spouse is absent and in best interest |
|
|
Mgmt of CP - Mismanagement
37 |
low standard; no fiduciary duty; not the same as violating management rules
• “A spouse is liable for any loss or damage caused by fraud or BF in the management of CP” • Unauthorized Alienation … relative nullity |
|
|
Mgmt of CP - Accounting
38 |
spouse owes accounting to other spouse for CP under his control at termination of CP regime
• prescribes 3 years from date of termination |
|
|
Termination of Legal Regime
39 |
legal regime of CP terminates:
• Death or judgment or dec of death of spouse • Marriage declared null • Divorce (retroactive to filing petition [date of 1st petition if 2 filed]) • By mat agreement terminating community |
|
|
Rts/Duties of Spouses Re: Unpartitioned Former CP
40 |
• When legal regime terminates by death of a spouse – provisions governing co-ownership are used
• When for any other reason – each spouse owns undivided ½ share of former community property |
|
|
Management of Former Community Property
41 |
• Duty to preserve in manner consistent with property
• Alienation and Encumbrance • same as earlier, requiring concurrence or not • Dispensing with concurrence, need: ➢ necessity ➢ best interest ➢ reason |
|
|
Classification of Obligations Upon Term of Legal Regime - Community Obls
42 |
• Incurred by spouse during CP regime for spouses’ common interest or for interest of other spouse
• Alimentary obls • Atty fees/costs incurred in div b/f date of J of div (and those incurred w/ regard to certain incidental matters like protective order proceedings) |
|
|
Management of Former Community Property
41 |
• Duty to preserve in manner consistent with property
• Alienation and Encumbrance • same as earlier, requiring concurrence or not • Dispensing with concurrence, need: ➢ necessity ➢ best interest ➢ reason |
|
|
Classification of Obligations Upon Term of Legal Regime - Separate Obls
43 |
• Incurred before and after leg regime
• During leg regime • Not for spouse’s common interest nor for interest of other spouse, • incurred for benefit of SP, • arising from intentional torts |
|
|
Classification of Obligations Upon Term of Legal Regime - Community Obls
42 |
• Incurred by spouse during CP regime for spouses’ common interest or for interest of other spouse
• Alimentary obls • Atty fees/costs incurred in div b/f date of J of div (and those incurred w/ regard to certain incidental matters like protective order proceedings) |
|
|
Reimbursement b/w Spouses Upon Term of Legal Regime
44 |
when CP regime ends, spouse may have claim against other for reimbursement…
• made from patrimony of spouse who owes reimbursement • “Patrimony”→ his share in CP & his SP • Amount→ based on amount/value of assets used at time they were used • Special Accession Rule 4 Spouses→ owner of grounds owns all improvements placed thereon • Applies to all spouses, not just those governed by legal regime |
|
|
Management of Former Community Property
41 |
• Duty to preserve in manner consistent with property
• Alienation and Encumbrance • same as earlier, requiring concurrence or not • Dispensing with concurrence, need: ➢ necessity ➢ best interest ➢ reason |
|
|
Classification of Obligations Upon Term of Legal Regime - Separate Obls
43 |
• Incurred before and after leg regime
• During leg regime • Not for spouse’s common interest nor for interest of other spouse, • incurred for benefit of SP, • arising from intentional torts |
|
|
Classification of Obligations Upon Term of Legal Regime - Community Obls
42 |
• Incurred by spouse during CP regime for spouses’ common interest or for interest of other spouse
• Alimentary obls • Atty fees/costs incurred in div b/f date of J of div (and those incurred w/ regard to certain incidental matters like protective order proceedings) |
|
|
Grounds for Reimbursement b/w Spouses Upon Term of Legal Regime
45 |
• 1st Ground 4 Reimbursement→ 1 spouse’s SP used for other spouse’s SP
• get reimbursement upon termination of community or alienation of l& • 2nd Ground 4 Reimbursement→ SP used for CP. Arises in 2 situations: • Satisfaction of community obl w/SP→ get ½ amount/value of SP at time it was used • Liability is limited to his share in community a/f deduction of all community obls ➢ But, full reimbursement 4→ obl’s incurred for ordinary expenses of marriage & supp of children • Use of SP to benefit CP→ get ½ amount/value of SP at time it was used • Liability is limited to his share of community a/f deduction of all community obls (accession: SP used turns into CP. Same reimbur rules) • 3rd Ground 4 Reimbursement→ CP used for SP. Arises in 3 situations: • Satisfaction of separate obl w/CP→ get ½ amount/value of CP at time it was used (No limitations) • Use of CP to benefit SP→ get ½ value of CP at time it was used • Uncompensated community labor expended on SP→ get ½ of the increase in value of SP attributable to the common labor (this also includes “undercompensated community labor”) ➢ Cant judicially partition pre-termin of CP. Can do pre –term voluntary partition- can be rescinded for lesion |
|
|
Reimbursement b/w Spouses Upon Term of Legal Regime
44 |
when CP regime ends, spouse may have claim against other for reimbursement…
• made from patrimony of spouse who owes reimbursement • “Patrimony”→ his share in CP & his SP • Amount→ based on amount/value of assets used at time they were used • Special Accession Rule 4 Spouses→ owner of grounds owns all improvements placed thereon • Applies to all spouses, not just those governed by legal regime |
|
|
Term of Legal Regime - Creditors rights
46 |
Sep or Com obs my be satisfied from CP. After CP regime terminates CP can still be seized to satisfy obl’s incurred by spouse b/f or during CP regime
|
|
|
Classification of Obligations Upon Term of Legal Regime - Separate Obls
43 |
• Incurred before and after leg regime
• During leg regime • Not for spouse’s common interest nor for interest of other spouse, • incurred for benefit of SP, • arising from intentional torts |
|
|
Term of Legal Regime - Estab SP
47 |
est by a matrimonial agreement excluding CP regime, or thru: judgment of sep of prop (like if other spouse mismanaged→terminates retroactively to date of filing petition); absentee spouse; divorcing spouses; physically separated. Spouses still liable for obs incurred for necessaries and family expenses are apportioned to ea spouses means.
• Creditors can intervene if it’s in ‘fraud of their rts’ or can sue to anul |
|
|
Reimbursement b/w Spouses Upon Term of Legal Regime
44 |
when CP regime ends, spouse may have claim against other for reimbursement…
• made from patrimony of spouse who owes reimbursement • “Patrimony”→ his share in CP & his SP • Amount→ based on amount/value of assets used at time they were used • Special Accession Rule 4 Spouses→ owner of grounds owns all improvements placed thereon • Applies to all spouses, not just those governed by legal regime |
|
|
Grounds for Reimbursement b/w Spouses Upon Term of Legal Regime
45 |
• 1st Ground 4 Reimbursement→ 1 spouse’s SP used for other spouse’s SP
• get reimbursement upon termination of community or alienation of l& • 2nd Ground 4 Reimbursement→ SP used for CP. Arises in 2 situations: • Satisfaction of community obl w/SP→ get ½ amount/value of SP at time it was used • Liability is limited to his share in community a/f deduction of all community obls ➢ But, full reimbursement 4→ obl’s incurred for ordinary expenses of marriage & supp of children • Use of SP to benefit CP→ get ½ amount/value of SP at time it was used • Liability is limited to his share of community a/f deduction of all community obls (accession: SP used turns into CP. Same reimbur rules) • 3rd Ground 4 Reimbursement→ CP used for SP. Arises in 3 situations: • Satisfaction of separate obl w/CP→ get ½ amount/value of CP at time it was used (No limitations) • Use of CP to benefit SP→ get ½ value of CP at time it was used • Uncompensated community labor expended on SP→ get ½ of the increase in value of SP attributable to the common labor (this also includes “undercompensated community labor”) ➢ Cant judicially partition pre-termin of CP. Can do pre –term voluntary partition- can be rescinded for lesion |
|
|
Choice of Law for Term of Legal Regime
48 |
CP (even if both spouses aren’t dom in La, prop may still be subject to La CP regime)
|
|
|
Grounds for Reimbursement b/w Spouses Upon Term of Legal Regime
45 |
• 1st Ground 4 Reimbursement→ 1 spouse’s SP used for other spouse’s SP
• get reimbursement upon termination of community or alienation of l& • 2nd Ground 4 Reimbursement→ SP used for CP. Arises in 2 situations: • Satisfaction of community obl w/SP→ get ½ amount/value of SP at time it was used • Liability is limited to his share in community a/f deduction of all community obls ➢ But, full reimbursement 4→ obl’s incurred for ordinary expenses of marriage & supp of children • Use of SP to benefit CP→ get ½ amount/value of SP at time it was used • Liability is limited to his share of community a/f deduction of all community obls (accession: SP used turns into CP. Same reimbur rules) • 3rd Ground 4 Reimbursement→ CP used for SP. Arises in 3 situations: • Satisfaction of separate obl w/CP→ get ½ amount/value of CP at time it was used (No limitations) • Use of CP to benefit SP→ get ½ value of CP at time it was used • Uncompensated community labor expended on SP→ get ½ of the increase in value of SP attributable to the common labor (this also includes “undercompensated community labor”) ➢ Cant judicially partition pre-termin of CP. Can do pre –term voluntary partition- can be rescinded for lesion |
|
|
Term of Legal Regime - Creditors rights
46 |
Sep or Com obs my be satisfied from CP. After CP regime terminates CP can still be seized to satisfy obl’s incurred by spouse b/f or during CP regime
|
|
|
Term of Legal Regime - Creditors rights
46 |
Sep or Com obs my be satisfied from CP. After CP regime terminates CP can still be seized to satisfy obl’s incurred by spouse b/f or during CP regime
|
|
|
Choice of Law for Legal Regime - Movables
49 |
Movables→ look to law of domicile of acquiring spouse at time of acquisition
• But, if either spouse is a La domiciliary when the community ends, determine rights re: movables acquired while in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but get rights granted under law of state of domicile when acquired |
|
|
Term of Legal Regime - Estab SP
47 |
est by a matrimonial agreement excluding CP regime, or thru: judgment of sep of prop (like if other spouse mismanaged→terminates retroactively to date of filing petition); absentee spouse; divorcing spouses; physically separated. Spouses still liable for obs incurred for necessaries and family expenses are apportioned to ea spouses means.
• Creditors can intervene if it’s in ‘fraud of their rts’ or can sue to anul |
|
|
Term of Legal Regime - Estab SP
47 |
est by a matrimonial agreement excluding CP regime, or thru: judgment of sep of prop (like if other spouse mismanaged→terminates retroactively to date of filing petition); absentee spouse; divorcing spouses; physically separated. Spouses still liable for obs incurred for necessaries and family expenses are apportioned to ea spouses means.
• Creditors can intervene if it’s in ‘fraud of their rts’ or can sue to anul |
|
|
Choice of Law for Legal Regime - Immovables
50 |
IMM→ law of situs. Exceptions:
• If either spouse is a La domiciliary when community ends, determine rights re: La IMM acquired during marriage while domiciled in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but gets rights granted under law of state of domicile when acquired • Use law of state of domicile of deceased at death re: La IMM if domiciled outside La both at death & acquisition & La IMM not considered CP under La law • 4 foreign IMM, use La law if acquired while dom here & either spouse is dom here at end of CP regime |
|
|
Choice of Law for Term of Legal Regime
48 |
CP (even if both spouses aren’t dom in La, prop may still be subject to La CP regime)
|
|
|
Choice of Law for Term of Legal Regime
48 |
CP (even if both spouses aren’t dom in La, prop may still be subject to La CP regime)
|
|
|
Choice of Law for Legal Regime - Movables
49 |
Movables→ look to law of domicile of acquiring spouse at time of acquisition
• But, if either spouse is a La domiciliary when the community ends, determine rights re: movables acquired while in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but get rights granted under law of state of domicile when acquired |
|
|
Choice of Law for Legal Regime - Immovables
50 |
IMM→ law of situs. Exceptions:
• If either spouse is a La domiciliary when community ends, determine rights re: La IMM acquired during marriage while domiciled in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but gets rights granted under law of state of domicile when acquired • Use law of state of domicile of deceased at death re: La IMM if domiciled outside La both at death & acquisition & La IMM not considered CP under La law • 4 foreign IMM, use La law if acquired while dom here & either spouse is dom here at end of CP regime |
|
|
Choice of Law for Legal Regime - Movables
49 |
Movables→ look to law of domicile of acquiring spouse at time of acquisition
• But, if either spouse is a La domiciliary when the community ends, determine rights re: movables acquired while in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but get rights granted under law of state of domicile when acquired |
|
|
Choice of Law for Legal Regime - Immovables
50 |
IMM→ law of situs. Exceptions:
• If either spouse is a La domiciliary when community ends, determine rights re: La IMM acquired during marriage while domiciled in another state as follows: • If CP under La law→ CP • If SP under La law→ SP, but gets rights granted under law of state of domicile when acquired • Use law of state of domicile of deceased at death re: La IMM if domiciled outside La both at death & acquisition & La IMM not considered CP under La law • 4 foreign IMM, use La law if acquired while dom here & either spouse is dom here at end of CP regime |
|
|
Marital Portion
51 |
if one spouse dies rich (5:1) then the other can claim MP even if separated (if no fault) RX=3 yrs.
Quantum: if no kids- SS gets ownership of ¼ of succn. 3 or less kids-U of ¼ succ for life. 4+ usu of a kids share. Cap is 1 million. Any legacy left to SS (or payments made as result of death-life ins, soc sec, pensions) should be deducted from MP. Earning capacity irrelevant. ‘children’ includes adopted and from prev marrs. |
|
|
Civil Law Property - Types of Property
52 |
➢ Common Things -no one can own – high sea/air
➢ Public Things-things that cannot be bought or sold – owned by the state – nat nav waters, ter sea, seashore ➢ Private Things-anything not Com or Pub- owned by individual or state in private capacity |
|
|
Civil Law Property - Natural Navigable Rivers & Streams
53 |
Bodies: owned by state in public capacity. Banks: privately owned but subject to public use incidental to navigation Beds: states owns up to low water mark (Nav=capable of being used as a highway for commercial traffic)
|
|
|
Civil Law Property - Nav Canals
54 |
if built w/ private funds or private land it’s a private thing and public use can be enjoined
|
|
|
Civil Law Property - Sea/Seashore-
55 |
territorial sea- public thing. High sea- common. Shore: space which seawater covers during highest tide in winter. Owned by state in pub capacity. Dardar- if non nave tideland or swampland and receives no coastal ebb and flow then it can be privately owned.
|
|
|
Civil Law Property - Nonnavigable water bodies
56 |
Bottom: Privately owned
|
|
|
Civil Law Property - Other Nav Water bodies
57 |
Bottoms: publicly owned to High water mark
• How to determine if river/stream or ‘other’(Placid Oil): {size/shape, depth, history, current} |
|
|
Civil Law Property - Accretion – Alluvion/Dereliction/Avulsion-
58 |
alluvion/dereliction which forms along the banks of a river or a stream belongs to the riparian land owner. Accretion and dereliction which form along a body of water that’s not a river or stream belongs to the state.
|
|
|
Civil Law Property - Alluvion
59 |
is the accretion that forms successively and imperceptibly on the bank of a river or stream
|
|
|
Civil Law Property - Dereliction
60 |
is the successive and imperceptible receding of water from the bank of a rivers or stream
|
|
|
Civil Law Property - Alluvion forming in front of multiple props
61 |
ea owner divide in proportion- depends on acreage/frontage
|
|
|
Civil Law Property - Erosion resulting in bank going to nav riv
62 |
state gets ownership.
|
|
|
Civil Law Property - Avulsion
63 |
piece of land being moved by sudden action of water = original owner can claim it. RX- 1 yr or longer if not possessed by owner of land to which it became attached.
|
|
|
Civil Law Property - Roads
64 |
public- can be owned by public or private indv but subject to pub use private-not subj to pub use
|
|
|
Civil Law Property - Dedication
65 |
1) Formal- valid donation 2) Statutory- compliance w/ statute requiring record of map/plat w/ describing streets etc. 3) Tacit- govt maintains road for more than 3 yrs 4) Implied- clear intent to give/accept
|
|
|
Civil Law Property - Incorporeal
66 |
things w/ no body that are comprehended by the understanding (inheritance rts, servitudes, obligations)
|
|
|
Civil Law Property - Incorporeal IMMOVABLE
67 |
rts. and actions applying to immovables --mineral leases
|
|
|
Civil Law Property - Incorporeal MOVABLE
68 |
rts and actions applying to movables-- interests in a juridical person, U over vehicle
|
|
|
Civil Law Property - Corporeal
69 |
things that have a body, whether animate or inanimate, and can be felt or touched
1. Corporeal movables-meet above def and can be moved or move normally from place to place |
|
|
Civil Law Property - Immovables
70 |
a. land and its CP - CPs of land include bldgs, other constru’s, standing timber, ungath’d crops ONLY if they belong to owner of ground
b. Buildings-always IMM, but what type depends on whether there’s unity of ownership: (Sep ownership→bldg=separate IMM (not a CP of land); Unity of ownership→bldg=IMM b/c it’s a CP of a tract of land); ‘bldg’ criteria-to be inhabited by people? Cost? Permanence? And prevailing notions of what constitutes bldg c. standing timber always IMM, but what type depends on whether there’s unity of ownership: 1. Sep ownership→bldg=separate IMM (not a CP of land); Unity of O→bldg=IMM b/c it’s a CP of a tract of land 2. Owner of land can compel owner of separately owned timber to remove it w/in a reasonable time 3. Once timber cut down→it’s a movable |
|
|
Things Sometimes Movable and Sometimes Immovable - 1
61 |
a. Other constructions permanently attached to ground-constructions (other than bldgs) permanently attached to ground
i. turns on unity or separation of ownership (unity of O→immovable; sep ownership→ movable) |
|
|
Things Sometimes Movable and Sometimes Immovable - 2
62 |
b. Unharvested Crops and Ungathered Fruits (Unity of O→immovable; Sep Ownership→movable)
|
|
|
Things Sometimes Movable and Sometimes Immovable - 3
63 |
c. Component Parts
i. Integral parts of land, bldg or other construction (eg-bldg materials) ii. CP of Buildings and Other Constructions-466 sets forth 3 tests for determining when a thing has become this: 1. Test 1: Things that complete a bldg of the same general type (if bldg is commercial, we’re comparing it w/ other commercial bldgs, not other hospitals). Exs-doors, shutters, gutters, cabinetry, plumbing, heating, cooling, etc. a. look to “prevailing usages” (prob same as soc expectations) to see whether attached thing completes bldg b. illustrative- unlisted things could qualify; listed things may not if not ‘prev usage’ for bldg of same gen type 2. Test 2: things that are attached to a construction other than a bldg and serve its principal use. Unlike test 1, here we care about the principal use of the thing. Exs-valves, piping, access ladders, lightning rods, beacon lights attached to water tower, NOT cell phone antenna b/c that doesn’t ‘further its principal use’ 3. Test 3: things that can’t be removed w/o subst. damage to bldg OR other constr. (applies to bldgs OR constr’s!) a. If thing meets criteria of this test, it’s a CP regardless of whether it satisfies either of 1st 2 tests!!!! b. Requires attachment to bldg or OC (leg removed ‘permanent’, supposedly no effect intended…) |
|
|
Things Sometimes Movable and Sometimes Immovable - 4
64 |
d. Immovables by Declaration-can declare and register things like appliances, farm equip CPs of IMM if meet reqs:
i. Unity of Ownership-owner of IMM must own thing trying to become CP ii. Immovable not a private residence iii. CP must be placed on IMM for its ‘service and improvement’ iv. Declaration Filed for Registry in conveyance records of parish where IMM located |
|
|
Deimobilization of Component Part (converting from IMM to mov)
65 |
, can do in 3 ways:
1. CP so damaged/deteriorated it can’t serve use of IMM→deimmobilized; not app. if removed for rep, intend to return 2. When owner of IMM: 1)executes act translative of ownership, 2)delivers CP to acquirer, and 3)acquirer is in GF 3. Detachment and Removal (must do in absence of rts of TPs) |
|
|
Movables
66 |
1. Anything that’s not immovable (catch-all)
2. Movables by anticipation-landowner can mobilize by anticipation unharvested crops or ungathered fruits that belong to him by an act translative of ownership or by granting a security interest (must be owned/encumbered by SI held by diff person) |
|
|
Accession of IMMs
67 |
ownership includes all things produced or united w/it.
|
|
|
Accession of IMMs - EXCEPTIONS - Fruits:
68 |
Possessor gets own Fruits gathered while in GF. If not in GF when gathered= only gets reimb
|
|
|
Accession of IMMs - EXCEPTIONS - Products
69 |
Possessor in GF has right to reimbursement. If not in GF - nothing
|
|
|
Accession of IMMs - EXCEPTIONS - Improvements to land may be separately owned
70 |
Proving separate ownership turns on who claim is brought a/g:
• If brought a/g owner of ground at time of improvement→ prove owner’s consent • If claim a/g 3dP who now owns land→ prove consent of original landowner & filing in convey rec • If sep owner no longer has right to keep there, may remove but must restore prop to former condition • If landowner gives written demand to remove, sep owner must remove in 90days or losses ownership when landowner gives written notice (2nd writing) • If different owner of a CP/IM then CP owner can remove and restore. if not removed after demand then IMM owner can remove at installers expense and then can pay or keep • If new landowner uses materials of another in GF/BF, he can keep if he reimburses. • If GF possessor made imp then owner can not demand removal but must pay cost, or CV, or EV. BF then: demand demolition; keep and pay CV or EV • Transf of IMM includes its CP. FX between parties occur when they have written agreement transf. ownership. 3P FX begin when that instrument is filed in Convey in parish where the thing is. • Transf. of Mov is transferred by a K between the owner and transferee. FX to parties occur according to agreement. 3P’s fx @ delivery to transferee. If registered mov then must include the Certificate of Title. • Bona Fide Purchasers doctrine- person in posss of lost or stolen thing can’t trasf ownership. True owner of the thing must reimburse person who purchased from merchant who customarily sells such things. If original transfer is tainted with vice of consent, orig transferee to 3P transferee–3PT keeps if GF and value |
|
|
Co-Ownership of Property
71 |
presumed to share equally
|
|
|
Co-Ownership of Fruits & Products
72 |
even if produced by 1, all share in propor to ownership, after deduction of prod cost
|
|
|
Co-Ownership - Use & Management
73 |
by agreement. If can’t, according to destination or ct order if partition’s unavailable
• Can dispose of interest freely. Cant dispose of the co-owned thing without consent of all co-owners. • Get reimbursement for necessary expenses & ordinary maintenance minus value of exclusive enjoyment |
|
|
Co-Ownership - Alienation
74 |
1 co can alienate his share but must get all co’s to consent to lease, encumbrances etc of the entire thing
|
|
|
Co-Ownership - Consent
75 |
• Must have consent of all for substantial alterations & improvements
• If no consent, but it’s consistent w/use of prop, other co-owners must keep & pay either: • Cost of mat’ls & workmanship, their CV, or EV of IMM • If no consent, & it’s inconsistent w/use of prop, other co-owners may either demand demolition or removal at improver’s expense OR keep & pay either CV of mat’ls & workmanship or EV of IMM |
|
|
Co-Ownership - Partition
76 |
cant be forced to co-own unless agreement or by law. May only exclude partition for up to 15yrs. Cant partition if thing is indispensable for the enjoyment of another thing owned by one of the co-owners.
|
|
|
Co-Ownership - Modes of Partition:
77 |
• Voluntary (extrajudicial)→ all agree on mode (may be rescinded 4 vice of consent or lesion: must get ¾ FMV)
• Judicial→ Partition in kind if it can be divided into lots of nearly equal value & total value of individual lots isn’t significantly lower than value of entire prop. O/w, ct will partition by licitation • Partition actions don’t Rx and a partition has no FX on a real rt burdening the thing |
|
|
Types of Servitudes
78 |
personal & predial;
Distinguishing→ if act creating servitude doesn’t state, then: • Presumed predial if advantage is conferred to estate BUT not predial if granted 4 person’s convenience unless acquired as owner of estate 4 himself/heirs/assigns • An instrument imposing a charge on thing creates a servitude, even if the instrument doesn’t designate the charge as a servitude. |
|
|
Predial Servitudes
79 |
Inc Imm- charge on servant estate 4 benefit of dom estate. Must be 2 estates (Cor IMM)
• Generally Inseparable from the dom estate-passes with it. Cant be alienated sep. Reqs 2 different owners |
|
|
Predial Servitudes - Legal
80 |
Common Enclosures (Party Walls, Common Fences) & Rights of Passage
• May make a Right of Passage-shortest route to nearest pub road and pay servient estate damages • Grat Right of Passage- if b/c of part prop becomes enclosed former serve sate shall give grat RofP even if not shortest route. No right of passage if due to the voluntary act of the owner. |
|
|
Predial Servitudes - Conventional
81 |
view, prohibition of view, light, prohibition of light, and passage
• (Affir/Neg or apparent/non-Apparent) (established by title, destination of owner, or prescription) • Must file for registry to affect 3dPs • If apparent (perceivable by exterior works)→ may establish by title, destination, & Acquisitive Rx • Dest by Owner- when 2 pieces of land owned by 1 person would result in pred serv if owned by 2, then when he sells one – an apparent Con serv is formed • If nonapparent (no exterior signs)→ may establish only by title & destination (fil dec of destination) |
|
|
Predial Servitudes - Conventional - Rt of the Dominant Estate
82 |
1.Rt to Make Necessary Works- owner of a DE can make @ his expense all work needed for the use and preservation of the serv.
2. Rt. to compel SE to make wrks- if act creating the serv requires it then he must do so. 3. Rts upon division of DE- if divided the servitude remains to ea part as long as it isn’t more cumbersome. 4. Rt. to Freedom from Interference- owner of SE can’t f’ w/ servitude BUT if it becomes more burdensome then SE can moved it = convenient place |
|
|
Predial Servitudes - Conventional - Extinction:
83 |
1. Destruction- total (temp is not enough);
2. RX of non-use 10 yrs Commences: • if affirmative→ on date of creation, is interrupted by use (any use appertaining to DE; partial counts as use of whole), & commences again when use ends • if negative→ from date of contrary act, If you don’t complain for 10 years – lose it 3. Confusion- DE/SE must be acquired in their entirety by 1 person. 4. Abandonment- owner of SE may abandon estate or the part w/ servitude MUST be evidenced by written act—DE owner is bound to accept it and confusion takes place. 5. Renunciation by owner of DE- express and written renunc. 6. Expiration of term- if est under term or rez condition then when 1 occurs its over 7. Dissolution of Rt. of Grantor- dissolves when rt of person who est it dissolves |
|
|
Building Restrictions
84 |
(Inc Imm & Real Rights) charges imposed by owner of IMM pursuant to general plan that governs bldg standards, specific uses, & improvements. It must be feasible & capable of being preserved.
• If not a viable general plan, restrictions may still be valid predial servitudes |
|
|
Bldg Restrictions - Diff from Servitudes
85 |
• Unlike servitudes, may impose affirmative duties, that are reasonable and necessary for the enforcement of the general plan, enforceable by injunctions & damages by other owners
|
|
|
Building Restrictions - Established by
86 |
juridical act executed by the owner(s) of an IMM
|
|
|
Building Restrictions - Terminating BR
87 |
if act is silent, by agreement of specified % of owners:
• If restriction in place for 15yrs→ 1/2 • If restriction in place for 10yrs→ 2/3 |
|
|
Building Restrictions - Amending BR
88 |
set forth procedure in act that establishes them, regardless of whether restriction being increased or lessened
|
|
|
Building Restrictions - Prescription for Violations
89 |
2yrs from commencement of noticeable violation- after 2yrs restriction doesn’t bind the IMM
|
|
|
Building Restrictions - Abandonment
90 |
can occur by abandonment of whole plan or of a particular restriction
|
|
|
Building Restrictions - Interpreting
91 |
doubt is resolved in favor of the unrestricted use of the property
|
|
|
Building Restrictions - Enforcement
92 |
who can enforce - all landowners subject to the BR and/or a homeowner’s association
|
|
|
Rez Planned Comm
93 |
real estate development used primarily for rez purposes in which the owners of sep lots are mandatory members of an assc by virtue of ownership. (Governed by LHAA)
• Bldg restrictions can be est by ¾ of lot owners. Increasing- if doc is silent then need 2/3 owners Reducing or Termination- more than ½. If doc is silent Person can decline coverage of new rest that is being est thru agreement if owners if the owner files statement w/in 30 days. |
|
|
Personal Servitudes
94 |
charge on a thing 4 benefit of person.
|
|
|
Personal Servitudes - Usufruct
95 |
real right of limited duration on the prop of another. The holder of the right (UT) has the right to use prop & enjoy its fruits, but UT has certain obls to owner of thing (NO).
|
|
|
Personal Servitudes- Successive UT
96 |
ok if the UTY exists or is conceived @ creation.
|
|
|
Personal Servitudes- Joint/divided UT
97 |
can be granted to 2+ in divided(termin of UTY’s int goes 2 NO) or undivided shares (termin of UTY’s int goes 2 other UTY)
|
|
|
Personal Servitudes- UT owns consumables
98 |
(depleted on 1st use), but must replace or pay commencement value at end U
|
|
|
Personal Servitudes- Consumables
99 |
things that can’t normally be used w/o changing their substance. For ex, $, food, stocks of merchandise, bearer bonds, prom notes
|
|
|
Personal Servitudes- UT & nonconsumable
100 |
UT has right to possess/use nonconsumables, but must preserve their substance
|
|
|
Personal Servitudes - Nonconsumables
101 |
things that can be used w/o altering their substance even though nat’al deterioration may occur. For ex, shares of stock, land, house, animals, vehicles, furniture, etc…
|
|
|
Personal Servitudes - UTs & Fruits
102 |
UT gets fruits accruing during usufruct & owes no accounting for them
• Natural fruits accrue when severed. Civil fruits accrue day to day • Stock (non-consum) → Cash Div & voting –UT w/ no accounting Stock Div – go to NO sub to UT • Ordinarily, UT can’t cut down trees b/c trees are generally not fruits. BUT, there are 2 exceptions: ➢ UT may do so for his own personal use on prop ➢ If UT can convert prop into “timberlands,” he has usufruct over trees, in which case UT gets proceeds of timber operations so long as he manages as prudent administrator • Kennedy - Timberlands→ land capable of producing timber in paying quantities • UT may clear-cut a portion of land to initiate farming operations if it’s the only way to convert the land into timberlands. ➢ Animals- can keep increase to herd but if one of herd dies- must be replaced if one dies due to UTY fault- can sell herd and pay value at time of sale to the NO |
|
|
Personal Servitudes - UTs & Improvements
103 |
W/NO’s consent, UT may make improvements & alterations to prop at his cost
• May remove, but must restore prop to former condition. Will not be reimbursed if can’t remove • If UT is liable for deterioration/destruction, may off-set liability w/value of improvement ➢ note→ must have written consent to get right of set-ff Improvements: • W/ NO’s written consent - UT may make at his own cost any improvements or alterations. • W/o NO’s consent, UT may make at his own cost any improvements that a prudent admin would make a/f giving notice to NO & receiving ct approval • UT -has right to remove all improvements he makes (w/ or w/o consent) but must restore the prop to the former condition and will not be reimbursed for those improvements he cannot remove. If written consent for the prop that cant be removed, UT has right for set-off for damages owned NO. |
|
|
Personal Servitudes - UT & Alienation
104 |
• UT may alienate, encumber, or lease his right of usufruct (ceases at end of usufruct).
• Generally cant alien non-consumables w/o perm of NO, unless expressly granted by creator of UT. • Can’t establish Predial Servitudes. Can dispose of Corp noncom mov –impaired by use,decay (UT of proceeds). • Duty to make inventory, to give security unless legal UT. If NO not child of UT or if FH – can get sec |
|
|
Personal Servitudes - UT & Duties
105 |
• UT must act as prudent admin, which means he must exercise care that a careful person would exercise in the admin of his own affairs. He’s liable 4 losses resulting from fraud/default/neglect
• UT must make all ordinary repairs & NO may compel UT to make these repairs; NO must make all extraordinary repairs (reconstruction of whole or a substantial part), but he can’t be compelled to make them, but UT can make them & receive compensation at end of usufruct (no interest allowed). • Exception→ UT must pay for all extraordinary repairs if caused by his own fault • Also, UT may relieve himself of duty to make ordinary repairs by abandoning the usufruct • UT must pay taxes & annual charges. |
|
|
Personal Servitudes - Naked Owner & Duties
106 |
• Rights and Duties NO: may alienate or encumber prop sub to UT, may grat real rts if wont injury UT; Cant interfere w/ enjoyment of the usufruct, May not make alterations to the prop
|
|
|
Personal Servitudes - UT Termination
107 |
• The Natural UT terminates upon death, term/condition. Judicial- 30 Years, end of term, termin of entity. Both- permanent & total loss/destruction of the thing, Mtg Foreclosure, Change in form of prop (UT extends to new prop), RX- nonuse for 10 yrs, Confusion, Abuse of Prop, Express Renunciatn
• Additionally, abuse of the prop may (not automatic) result in termination. Abuse is a serious violation of the obl to preserve the substance of a non-consumable (tested a few times). |
|
|
Personal Servitudes - Effect of Termination
108 |
Non-Consum – deliver prop to No, if right to dispose pay value at time of disposal
• Consumables – deliver things of the same quantity and quality or value at commencement |
|
|
Personal Servitudes - Right of Habitation
109 |
nontransferable real right of a natural person to dwell in the house of another
• Must use as prudent admin & must return prop in same condition it was in when he received it • Ordinary wear & tear excepted Treated like UT - Not transferable/heritable/or alienable |
|
|
Personal Servitudes - Right of Use
110 |
confers special use of an estate less than full enjoyment
• “personal servitude” version of a “predial, conventional servitude” • transferable & heritable unless prohibited by law/K • If right exhausts the utility of the prop, it’s a usufruct |
|
|
Acquisitive Prescription of IMMs
111 |
(getting ownership of property by holding poss for req period of time)
|
|
|
Acquisitive Prescription of IMMs Possession
112 |
the detention/enjoyment of a thing that 1 holds/exercises by himself or by another who keeps it in the possessor’s name
• Corporeal possession→ physical use, detention, & enjoyment. Trumps civil & constructive possession • Civil Poss-after corp possess maintaining poss thru intent to poss as owner even if no corp poss • Constr Poss- corp poss of immov by virtue of a title = constructive poss to limits of title (don’t need GF or GTitle); land must be contiguous (not divide by nat nav riv/stream) If no title then only possess inch by inch or w/in natural or artificial boundaries |
|
|
Acquisitive Prescription of IMMs Possession - Needs
113 |
Need: 1. Corpus (corporeal poss)
2. Animus (intention to possess as owner – not just trespassing) • The law presumes the one who corporally detains a thing intends to possess it as owner Exception: • Precarious→ the exercise of possession over a thing w/permission or on behalf of the owner/possessor- presumed to poss for another even if he’s not. Can Term Precarious Posession and begin to posesss for ones self when: Co-Owner’s- ‘when he demos by overt and unambig acts sufficient to give notice to his co’ Non- co-owners- actual notice • 2 people can’t possess at the same time. Once someone acquires possession, he remains in possession until it’s lost through abandonment/eviction. Merely tearing down a fence w/o o/w disturbing possession doesn’t constitute an eviction. Violent/clandestine/discontinuous/equivocal= NO legal FX |
|
|
10 yr AP of IMMs - Elements
114 |
GF, Just Title, & a thing susceptible of acquisition through AP, Possession for 10yrs,
• GF→reasonably believes in light of objective considerations that he is owner of the prop • GF’s presumed; rebutted w/proof possessor has actual/constructive knowledge he’s not owner • Only needed at the commencement of possession • Title examination isn’t required for GF • Quitclaim Deed – transfer of all rights transferor has in prop (if any) –doesn’t auto destroy GF • Just Title→ juridical act sufficient to transfer ownership or other real right (valid, written, & filed) • Susceptible of Rx- all private things Except: Rx does not run against the state even if private thing • Posession for 10 yrs- • Tacking- poss of trans’or is transferred to trans’ee but needs juridical link ➢ Poss can only be transferred if there is a univ(GF transfers) or particular title (GF Not Transfd) • Boundary tacking- if ancestors in title poss beyond title w/in visible bounds you get that land. Does away with the requirement for the full juridical link (title) – You just need: Some juridical link (title to some of the land) and Posession within visible bounds. |
|
|
10 yr AP of IMMs - Interuption of Prescription
115 |
AP is interrupted when possession is lost unless get back w/in 1 year or bring an action w/in 1 year. RX runs against all (absent, incomp, minors, and interdicts)
|
|
|
30 yr AP of IMMs - Elements
116 |
Possession for 30yrs & a thing susceptible of ownership
• Generally only extended to land actually possessed • State can’t get a thing through 30 yr AP. |
|
|
AP of Movables
117 |
3yr= GF, juridical act (can be oral), poss as owner, poss for 3 yrs.
10 yr= poss for 10 yrs |
|
|
Acquisitive Prescription - Boundary Action
118 |
right 2 demand fixing of boundaries; imprescriptibe, but subject 2 acquisitive Rx
• May be demanded by landowner/possessor/UT (not binding on NO unless he’s a party)/lessee (if necess) • Fixed extrajudicially if landowners determine line of separation by written agreement • O/w, judge will fix according to ownership, or if no ownership, according to possession • BUT, if party proves o’ship by acquisitive Rx, that trumps the other person’s title |
|
|
Conflicts of Law concerning real rights - Immovables
119 |
Immovables: apply the law that the situs state would apply. classify as imm according to the law of situs
|
|
|
Conflicts of Law concerning real rights - Movables: corporeal movables
120 |
governed by the law of the state thatt movable was situated at the time the right was acquired.
• if the property later becomes situated in La., then subject to La. law if: ➢ foreign right incompatible with law of this state ➢ holder of the right knew/should have known that it was moved to this state; or, ➢ justice and equity so dictate to protect third parties. • drafters had the bona fide purchaser doctrine in mind with this test. incorporeal movables - classify the thing as corp or incorpo by applying the law of the state where the thing is situated. • for other rights/issues, apply the law of the state whose policies most seriously impaired ➢ identify policies implicated by the conflict, such as: • discouraging forum shopping; • encouraging uniformity of results; • protecting the justified expectations of the parties; • minimizing adverse consequences from subjecting a party to the law of more than one state. ➢ weigh and balance in light of the relationship of each state to the parties and to the dispute. |
|
|
Conflicts of Law concerning real rights - Movables: incorporeal movables
121 |
classify the thing as corp or incorpo by applying the law of the state where the thing is situated.
• for other rights/issues, apply the law of the state whose policies most seriously impaired ➢ identify policies implicated by the conflict, such as: • discouraging forum shopping; • encouraging uniformity of results; • protecting the justified expectations of the parties; • minimizing adverse consequences from subjecting a party to the law of more than one state. ➢ weigh and balance in light of the relationship of each state to the parties and to the dispute. |
