Louisiana Property & Acquisitive Prescription

Front 1

Movables - Definition

Back 1

Anything that is not immovable.

Front 2

Things that are always immovables

Back 2

1. Tracts of land and its component parts: Buildings, other constructions that are permanently attached to the land, standing timber

Front 3

What is a building?

Back 3

Consider:
1. Is it occupied by people?
2. Cost
3. Permanence
4. Prevailing notions of what constitutes a building.
e.g. (exam Q) living quarters unit (building & immovable) attached to drilling platform embedded on state-owned seabed (movable: no unity of ownership) - living quarters is separate, immovable

Front 4

"Other construction permanently attached to the ground"

Back 4

If there is unity of ownership, it's an immovable; if not, a movable.

Examples: large billboard embedded in concrete, underground pipeline, offshore drilling platform

Front 5

Component Parts: The 3 tests

Back 5

1. If a building: Does the thing attached serve to complete a bldg of same GENERAL type w/o considering specific use?
2. Other Construction: Does thing attached serve to complete SPECIFIC/PRINCIPAL use of const.?
3. Substantial Damage (applies to bldg or other const - if this test met, no need to meet test 1 or 2) - Is thing attach to such a degree that it can't be removed without substantial damage to the thing, the bldg. or other constr?

Front 6

Fruits - Define

Back 6

Things produced or derived from another w/o diminishing its substance:
1. Natural - crop - belong to U when severed - no duty to account to NO
2. Civil - revenues: rents, dividends, interest, royalties - accrue day to day
3. Trees - U can remove for personal use - if timberland, "prudent admin std"
4. Animals: if all die, NO bears loss

Front 7

Accessory v. Component Part

Back 7

Accessory: A thing that would be classified as a component part if installed in an immovable, is an accessory if installed in a movable

Front 8

Rights of Usufructuary

Back 8

1. Consumables: can consume or alienate, but must pay or replace for NO at end of usufruct.
2. Nonconsumable: Has rights to use and fruits - can't destroy or dispose of

Front 9

Duties of Usufructuary

Back 9

1. Inventory, give security, pay taxes, probably insure
2. Make ordinary repairs - NO is responsible for extraordinary repairs, but USU can make and seek repayment from NO at end of usufruct
3. Duty of care: prudent administrator standard

Front 10

Usufructuary v. Naked Owner

Repairs, Improvements & Alterations

Back 10

Extraordinary repairs (requiring reconstruction of substantial part):
1. NO has duty
2. If NO refuses, U can make & get reimbursed at end, w/o interest - No consent from NO needed

Improvements & Alterations:
1. U must get written consent from NO - U must pay
2. U can remove at end and restore property to original condition
3. Can leave - No reimbursement, but can offset against damages for destruction or deterioration of prop
4. If no consent from NO, can make improvements at own cost with notice to NO & court approval - prudent admin std

Front 11

Incorporeal Immovable

Back 11

Rights & actions that apply to immovables, e.g. mineral servitudes, royalties & leases

Front 12

Movable by Anticipation

Back 12

Unharvested crops & fruits of trees that belong to someone other than the owner of the ground,
or, which are encumbered with secondary rights to a 3rd party

Front 13

Predial Servitude

Back 13

An obligation placed on a servient estate for the benefit/right of the dominant estate. The advantage is granted to
1. a particular estate, or
2. a person & his heirs or assigns

Front 14

3 Types of Predial Servitudes

Back 14

1. Natural - arise from situation of estates (natural drainage)
2. Legal servitudes - Limitations on ownership imposed by law
3. Conventional (Voluntary) servitudes - Established by juridical act (title, K) or by prescription to the benefit of corporeal immovables (e.g., support, light, passage, prohibition of view)

Front 15

Legal Predial Servitude - Right of Passage

Back 15

Estate without access to public road gets access across adjoining prop to road,
Exception: owner of land creates enclavement by dividing prop,keeps enclaved portion & doesn't create a right of passage

Front 16

Limits on Legal Right of Passage

Back 16

1. Owner of dominant estate pays costs
2. Only reasonably necessary traffic
3. Only shortest route to road, least injurious to servient estate
4. Dom. owner can't relocate
5. Servient owner can change route at own expense if affords same rt of passage to dom. estate & original route now more burdensome
6. Classified as "affirmative servitude"

Front 17

Creation of Conventional Predial Servitude

Back 17

1. By title (if nonapparent, must owner must file formal written declaration)
2. By destination of Owner - if two estates owned by same person, and there is a relationship between them that would form a servitude if they were owned by different people...
An apparent conventional servitude is created when owner ceases to own both estates (nonapparent servitude created only if owner previously filed a formal declaration)

Front 18

Personal Servitude of Right of Use

Back 18

Pipeline Cases - Confers to the grantee (not to dominant estate) a specified use of an estate less than full enjoyment that could've been established by predial servitude over a servient estate.
Doesn't terminate on death of grantee unless provided in contract
It is a real right, not a personal right. If properly recorded, is good against the world.

Front 19

Prescription (Rx) of Non-use

Back 19

Right of Use applies to most real rights (other than ownership). Rx after 10 years

Front 20

Affirmative & Negative Servitudes

Back 20

Affirmative: gives owner of dominant estate the right to do something - e.g., right of way, drainage, support

Negative: restricts the owner of servient estate of doing something, e.g. prohibit building, use of estate as commercial or industrial establishment
**Relevant to Rx of nonuse

Front 21

Predial v. Personal Servitudes

Back 21

If an act grants an advantage to an estate OR to a person & "his heirs & assigns," it's predial.
If an act grants an advantage for the convenience of a person W/O words "for heirs or assigns," it's personal

Front 22

Precarious Possession

Back 22

The exercise of physical acts of use, detention or enjoyment over a thing, WITH permission or or on behalf of another.

Not adverse & period for acquisitive Rx doesn't begin to run until actual notice that possession is adverse is given

Front 23

Bona Fide Purchaser of Lost or Stolen Goods

Back 23

"Stolen" - transfer w/o consent - not fraud

3 year Rx

Reimbursement: If transferee bought the thing in GF from a merchant who customarily deals in such things, the owner must pay the transferee
GF must be objective (reasonably prudent person std) & subjective (honest belief)

Front 24

Abandonment & Occupancy

Back 24

A thing is abandoned when the owner relinquished possession with intent to give up ownership.

Ownership of an abandoned thing acquired when a person takes possession with intent of ownership: "occupancy"

Front 25

Possession

Back 25

Requires:
Animus - intent to possess as owner (not on behalf of or w/ permission of another
Corpus - physical acts of use, detention or enjoyment

Front 26

Acquisitive Rx of Movable

Back 26

Requires possession for:
3 years with GF and juridical act sufficient to transfer ownership (just title not necessary; transfer can be oral); or
10 years with neither GF nor juridical act

Front 27

Ownership in Indivision - Improvements

Back 27

Substantial improvements or alterations require the consent of all co-owners.
If not obtained, other co-owners can require demolition if:
1) improvement is inconsistent with use of prop
2) BF - person made the improvement over objection of co-owners

Front 28

Partition of Co-owned Thing

Back 28

Judicial partition in kind:
1. if the co-owned thing can be divided into lots of nearly equal value, &
2. the total value of lots is not significantly lower than value of total
Voluntary: Co-owners can agree not to partition prop for up to 15 years. If agreement is for longer, if will be reduced to 15

Front 29

Incorporeal

Back 29

Legal rights, i.e. things with no body, that are comprehended by the understanding. Example: usufruct

Front 30

Building Restriction

Back 30

Charges imposed by owner of immovable pursuant to GENERAL PLAN that governs building standards, specified uses & improvements.
Must be feasible & capable of being preserved.
If no plan restrictions, must be predial servitude.
Includes affirmative duties.

Front 31

Residential Planned Communities
LHAA (LA Homeowners Association Act)

Back 31

Definition: real estate development, primarily residential, in which owners of lots are mandatory members of the association.
Changes to restrictions - if document is silent:
1. Establish new restrictions by 3/4 vote.
2. Increase restrictions by 2/3 vote.
3. Reduce or terminate by 1/2 vote.
Owner can decline new restriction with notice and recordation.

Front 32

Building Restrictions - How to Establish

Back 32

Definition: Charges imposed by owner of immovable pursuant to a general plan that:
a. governs building standards, uses & improvements,
b. Plan must be feasible, capable of being preserved.
c. May impose affirmative duties
Restrictions are incorporeal immovables.

Established by juridical act by owner of immovable or all of affected immovable owners.

Front 33

Building Restrictions - Terminating & Amending

Back 33

Generally, as provided in juridical act that establishes restrictions.
If act is silent, by agreement of:
1. 1/2 of owners if restrictions have been in place 15 years.
2. 2/3 of owners if in place for 10 years.
Applies to amendments that lessen or increase restrictions, retroactively
Rx: To enforce violation of restriction is 2 years after beginning of a noticeable violation.

Front 34

Predial Servitudes

Back 34

Real Charge on servient estate for benefit of dominant estate.
If right granted for convenience of person, it's a personal servitude.

[July 07 Q 1 and others] Aucoin & Boudreaux and lake access:
Exchange Deed in which parties agree to Single Building Site Limitation creates reciprocal servitudes.

Front 35

Enforceability of servitudes v. purchaser

Back 35

Property rights are good against the world and do not require privity of K for enforcement. Must generally be recorded to to be good against 3rd party purchaser.

Front 36

Partition by Licitation

Back 36

By Public Sale. Partition in kind is not available if the immovable cannot be divided into roughly equal lots and the total value of the lots is not substantially lower than the whole.

Front 37

Rights and Obligations of Co-owners of Immovables

Back 37

1. Fruits and Products produced by one co-owner must be shared with others in proportion to ownership interest.
2. Co-owner/manager entitled to reimbursement for expenses, maintenance and repair, Subject To Reduction commensurate w/ value of exclusive enjoyment.

Front 38

Alterations/improvements to Co-owned thing

Back 38

1. Co-owners must consent.
2. If not, is improvement consistent with use of the property (destination of thing)?
3. If not, other co-owners can demand demolition, or keep improvement and pay value.