Property

Front 1

Division of Things

Back 1

Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables.

Front 2

Common Things

Back 2

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 comformably with the use for which nature has intended them.

Front 3

Public Things

Back 3

- 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.

Front 4

Seashore

Back 4

Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season.

Front 5

Public Things and Common Things Subject to Public Use

Back 5

- Public things and common things are subject to public use in accordance with applicable laws and regulations. Everyone has the right to fish in the rivers, ports, roadsteads, and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, and the like, provided that he does not cause injury to the property of adjoining owners.
- The seashore within the limits of a municipality is subject to its police power, and the public use is governed by municipal ordinances and regulations.

Front 6

Private Things

Back 6

Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.

Front 7

Freedom of Disposition by Private Persons

Back 7

Owners of private things may freely dispose of them under modifications established by law.

Front 8

Private Things Subject to Public Use

Back 8

Private things may be subject to public use in accordance with law or by dedication.

Front 9

Banks of Navigable Rivers or Streams

Back 9

- 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.

Front 10

Roads; Public or Private

Back 10

- A road may be either public or private.
- A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it.
- A private road is one that is not subject to public use.

Front 11

Works Obstructing the Public Use

Back 11

- Works built without lawful permit on public things, including the sea, the seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers, that obstruct the public use may be removed at the expense of the persons who built or own them at the instance of the public authorities, or of any person residing in the state.
- The owner of the works may not prevent their removal by alleging prescription or possession.

Front 12

Building Encroaching on Public Way

Back 12

A building that merely encroaches on a public way without preventing its use, and which cannot be removed without causing substantial damage to its owner, shall be permitted to remain. If it is demolished from any cause, the owner shall be bound to restore to the public the part of the way upon which the building stood.

Front 13

Construction of Navigation Facilities on Public Places

Back 13

Port commissions of the state, or in the absence of port commissions having jurisdiction, municipalities may, within the limits of their respective jurisdictions, construct and maintain on public places, in beds of natural navigable water bodies, and on their banks or shores, works necessary for public utility, including buildings, wharves, and other facilities for the mooring of vessels and the loading or discharging of cargo and passengers.

Front 14

Corporeals and Incorporeals

Back 14

- 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.

Front 15

Riparian Owner

Back 15

owner of a river bank – property rights continue until the middle (imaginary line) of the river or stream.

Front 16

“Oyster Statutes”

Back 16

The old Louisiana statutes, which defined the ownership characteristics of navigable and/or non-navigable waterways. They were dubbed “oyster” statutes because the statutes specifically mentioned the practice of oyster trapping. The “oyster statutes” stipulated that the state claimed all land, which was not already owned, became the property of the state. There was also a stipulation that no charge was ever to be assessed to individuals for agricultural, fishing purposes on the state-owned land.

Front 17

Why the navigable waterways are owned by the state and not the federal government?

Back 17

Coyle v. Smith and Pollard v. Hagan give reasons:
• Article 4 of the US Constitution gives the states the sovereignty of individual republics, and one of the state “powers” is that they own in-state navigable waterways.
• Coyle v. Smith – “Equal Footing Doctrine” – All newly admitted states are on “equal footing” with the previous 13 states. This is where LA gets its “ownership” of its in-state navigable waterways, because the 13 original states also had this “ownership” of navigable waterways.

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• The use of the banks by the public must be incidental to the navigable nature of the river and its enjoyment as an avenue of commerce. Consequently there is a right to fish but there is no right to:

Back 18

- There is no right to hunt or trap fur on riverbanks;
- There is no right to cross privately owned lands to get to the banks;

Front 19

Real Rights

Back 19

Rights that confer a direct and immediate authority over a thing.

Front 20

Predial Servitude

Back 20

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.

Front 21

What makes a waterway navigable? What is the test?

Back 21

• If the waterway is “usable for commerce in its natural condition,” then it’s 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. (There is a broad definition for “use for commerce”)

Front 22

What is the crucial date to determine whether a waterway is navigable?

Back 22

In 1812, Louisiana became a state. Thus, at that point, if the waterway was navigable, then it became state property.

Front 23

Shore of the Sea or of a Lake

Back 23

There is no right to alluvion or dereliction on the shore of the sea or of lakes.

Front 24

TEST for determining whether a water body is an “Arm of the Sea”

Back 24

1) Proximity to sea; and
2) Whether it is actually overflowed directly by waters of the sea, and not just by other waters that are being pushed back.


• The “sea” in Louisiana refers to the gulf of Mexico. According to statute, “arms of the sea” are public things.
• If the water body is classified as “sea,” then it does not have to be navigable for the state to have ownership.

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ebb and flow of tides doctrine

Back 25

• LA Courts has explicitly disclaimed the ability to claim land under the ebb and flow of tides doctrine. For this reason, brackish water, because its saltwater has combined with inland fresh water, will not be considered an “arm of the sea” because typically, it is too far inland and too remote from the sea.

Front 26

Ownership of Abandoned Bed when River Changes Course

Back 26

- When a navigable river or stream abandons its bed and opens a new one, the owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity of land that he lost.
- If the river returns to the old bed, each shall take his former land.

Front 27

Islands and Sandbars in Navigable Rivers

Back 27

Islands, and sandbars that are not attached to a bank, formed in the beds of navigable rivers or streams, belong to the state.

Front 28

Ownership of Beds of Non-Navigable Rivers or Streams

Back 28

In the absence of title or prescription, the beds of nonnavigable rivers or streams belong to the riparian owners along a line drawn in the middle of the bed.

Front 29

Alluvion and Dereliction

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- Accretion formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank, who is bound to leave public that portion of the bank which is required for the public use.
- The same rule applies to dereliction formed by water receding imperceptibly from a bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction.

Front 30

Division of Alluvion

Back 30

Alluvion formed in front of the property of several owners is divided equitably, taking into account the extent of the front of each property prior to the formation of the alluvion in issue. Each owner is entitled to a fair proportion of the area of the alluvion and a fair proportion of the new frontage on the river, depending on the relative values of the frontage and the acreage.

Front 31

1812 Rule

Back 31

1) If it was navigable in 1812, and is still navigable, then the servitude applies.
2) If it was navigable in 1812, but is no longer navigable, the land and the river bed are private state property and not subject to public use.
3) If it was not navigable in 1812 but is navigable now the issue is questionable; because the 5th and 14th amendments are involved (government taking land without compensation).

Front 32

Sudden Action of Waters

Back 32

If a sudden action of the waters of a river or stream carries away an identifiable piece of ground and unites it with other lands on the same or on the opposite bank, the ownership of the piece of ground so carried away is not lost. The owner may claim it within a year, or even later, if the owner of the bank with which it is united has not taken possession.

Front 33

Island Formed by River Opening a New Channel

Back 33

When a river or stream, whether navigable or not, opens a new channel and surrounds riparian land making it an island, the ownership of that land is not affected.

Front 34

Aleatory Contract with the State

Back 34

A riparian owner is an a aleatory contract with the state (the state being the owner of the bed). The contract provides that “in the event one party loses by encroachment of the stream and the other gains, the loss is offset by the possibility of a reversal of condition.” Essentially, the chance that the encroachment of water makes a riparian owner lose his land is just as good as the chance that the riparian owner gains land from the encroachment in the other direction.

Front 35

Canals

Back 35

• Man made navigational canals are not rivers.
• If a canal is constructed on public land, then it is subject to public use.
• If a canal is constructed by the state on a right of way of servitude, it is a private thing subject to public use.
• If the banks of a man-made, private canal belong to private persons, there is no public use.

Front 36

Tracts of Land

Back 36

Tracts of land, with their component parts, are immovables.

Front 37

Component Parts of Tracts of Land

Back 37

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.

Front 38

Transfer or Encumbrance of Immovable

Back 38

The transfer or encumbrance of an immovable includes its component parts.

Front 39

Incorporeal Immovables

Back 39

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.

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Buildings and Standing Timber as Separate Immovables

Back 40

Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.

Front 41

TWO Requirements for an “other construction” to be a component part: (CC Art 463)

Back 41

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.

Front 42

Determining whether something is a component part of an immovable:

Back 42

Permanent Attachment and Unity of Ownership
Is it Permanently Attached? Is there unity of ownership? (CC Art 463) These are necessary for something to be a component part of an immovable.
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)
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)

Front 43

Things Incorporated into an Immovable

Back 43

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.

Front 44

Component Parts of Buildings or Other Constructions

Back 44

- Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
- Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.

Front 45

Immovables by Declaration

Back 45

The owner of an immovable may declare that machinery, appliances, and equipment 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.

Front 46

Movables by Anticipation

Back 46

- Unharvested crops and ungathered fruits of trees are movables by anticipation when they belong to a person other than the landowner. When encumbered with security rights of third persons, they are movables by anticipation insofar as the creditor is concerned.
- The landowner may, by act translative of ownership or by pledge, mobilize by anticipation unharvested crops and ungathered fruits of trees that belong to him.

Front 47

Doctrine of “Mobilization by Anticipation”

Back 47

In all cases where the growing crops are owned by someone other than the landowner, the interest of the crop owner is classified as an interest in movable property by application of the doctrine of “mobilization by anticipation.” Where the crops are owned separately, the ownership rights of the crop owner (lessee) must be recorded in order for them to be effective against 3rd persons who may be trying to buy and/or take the land. Recordation is not required when the crop owner acquires ownership by “acts of possession.”

Front 48

Unharvested, Ungathered Crops

Back 48

(1) Immovables – Unharvested crops are immovables (and belong to the owner of the ground) when the lessee (or purported separate owner of the crops) does not publicly record his lease (or interest in the crops).
(2) Movables “by anticipation” – Unharvested crops are “movables by anticipation” (and belong to the separate owner of the crops) when the lessee (or purported separate owner of the crops) publicly records his lease (or interest in the crops).

Front 49

Buildings, Other Constructions, Standing Timber, and Crops

Back 49

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.

Front 50

Things that would become an immovable component part may sometimes retain their movable status because they fall into one of 3 exceptions:

Back 50

1) Statutory Exceptions
2) Chattel Mortgage (Recordation Required)
3) Vendor’s Lien

Front 51

1) Non-Immobilization (By Virtue of Statute)

Back 51

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.

Front 52

2) Chattel Mortgage Exception

Back 52

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.

Front 53

3) Vendor’s Lien & Privilege

Back 53

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?

Front 54

Person Asserting Ownership, Mortgage or Privilege on Seized Property

Back 54

A third person can claim seized property by filing an intervention, which must be filed before the judicial sale of the seized property, and the court can call off the sale to adjudicate whether or not that 3rd person (usually a vendor of parts) has a valid claim to the property.

Front 55

Deimmobilization

Back 55

- 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.

Front 56

Building Materials

Back 56

- 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.

Front 57

Incorporeal Immovables

Back 57

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.

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Corporeal Movables

Back 58

Corporeal movables are things, whether animate or inanimate, that normally move or can be moved from one place to another.

Front 59

Incorporeal Movables

Back 59

- 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.

Front 60

Things Not Immovable

Back 60

All things, corporeal or incorporeal, that the law does not consider as immovables, are movables.

Front 61

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?

Back 61

• Is it permanently attached to the ground?
- 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  Is it integrated in the soil?
• Is there unity of ownership?
- CC Art 464 – Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.
- 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”?
- 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.”

Front 62

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?

Back 62

• Has the cell phone company recorded its separate ownership in the tower?
- 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.

Front 63

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?

Back 63

• He can declare the separate movables to be component parts of the land (in the public record), and thus 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.

Front 64

Possession has 2 elements

Back 64

1) Corpus = Body – meaning the physical detention, enjoyment, and use of the thing
2) Animus = Intent – this is the tricky part of possession.

Front 65

Possession

Back 65

- Possession is the detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name.
- The exercise of a real right, such as a servitude, with the intent to have it as one's own is quasi-possession. The rules governing possession apply by analogy to the quasi-possession of incorporeals.

Front 66

Nature of Possession; Right to Possess

Back 66

Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it.

Front 67

Rights of Possessors

Back 67

A possessor is considered provisionally as owner of the thing he possesses until the right of the true owner is established.

Front 68

Occupancy

Back 68

Occupancy is taking of possession of a corporeal moveable that does not belong to anyone. The occupant acquires ownership the moment he takes possession. “Occupancy is a mode of acquiring property by which a thing which belongs to nobody, becomes the property of the person who took possession of it, with the intention of acquiring a right of ownership upon it.”

Front 69

Abandoned Things

Back 69

One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is “abandoned” when its owner relinquishes possession with the intent to give up ownership. Allows a person who acquires a movable that has been abandoned to immediately become its “master.”

Front 70

Lost Things

Back 70

One who finds a corporeal movable that has been lost is bound to make a diligent effort to locate its owner or possessor and to return the ting to him. If a diligent effort is made, and the owner is not found within 3 years, the finder acquires ownership. Here, the Ps made a diligent effort to find George’s original possessor, and so after 3 years, the Ps became George’s owner, and they are thus entitled to the relief that an owner is entitled to.

Front 71

Corporeal Possession

Back 71

Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing.

Front 72

Constructive Possession

Back 72

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.

Front 73

Retention of Possession; Civil Possession

Back 73

Once acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess corporeally. This is civil possession.

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“Ousting” Rules/Principles

Back 74

1) Earlier constructive possession prevents a later attempt at constructive possession.

2) Later corporeal possession ousts earlier constructive possession if both have been maintained for a year.

3) Later corporeal possession ousts earlier civil possession if both have been maintained for a year.

4) Later civil possession ousts prior corporeal, civil, or constructive possession.

5) To establish possession, one must have the intent to possess as owner and physical detention for more than 1 year.

Front 75

Acquisition of Possession

Back 75

To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing.

Front 76

(1) Simultaneous Loss of the 2 Elements of Possession

Back 76

Possession is lost when the 2 elements which form the possession, disappear at the same time. This is way it usually happens, and it takes place in 2 different cases:
1) Alienation – the old possessor of a thing transmits it to the acquirer who immediately possesses it in his place.
2) Abandonment – the possessor throws the thing away, with the intent to give it up.

Front 77

(2) Loss of the Corporeal Element (corpus)

Back 77

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.

2) Without the intent of the possessor, the thing gets away physically from him. For example, if the thing is 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;
• This is seen in Liner v. LLE, Richard v. Comeaux, & Evans v. Dunn.

Front 78

(3) Loss of the Element of Intent (animus)

Back 78

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. (This is seen in Harper v. Willis)

Front 79

(4) Preservation of Possession through Another

Back 79

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.

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(5) Preservation of Immovable Possession Merely by Intent

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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.

Front 81

Presumption of Intent to Own the Thing

Back 81

One is presumed to intend to possess as owner unless he began to possess in the name of and for another.

Front 82

Acquisition of Possession through Another

Back 82

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.

Front 83

Exercise of Possession by Another

Back 83

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.

Front 84

Juridical Persons

Back 84

A juridical person acquires possession through its representatives.

Front 85

Presumption of Retention of Possession

Back 85

The intent to retain possession is presumed unless there is clear proof of a contrary intention.

Front 86

Loss of Possession

Back 86

Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation.

Front 87

Loss of the Right to Possess

Back 87

- 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.

Front 88

Interruption of Acquisitive Prescription

Back 88

- Acquisitive prescription is interrupted when possession is lost.
- 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.

Front 89

Determination of Ownership According to Prescription

Back 89

When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

Front 90

Continuation of the Possession of Decedent

Back 90

- 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.

Front 91

Transfer of Possession

Back 91

Possession is transferable by universal title or by particular title.

Front 92

Tacking of Possession

Back 92

The possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.

Front 93

Requirements for Tacking

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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.

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Presumption of Continuity of Possession

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One who proves that he had possession at different times is presumed to have possessed during the intermediate period.

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Possessory Action

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- 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.

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Vices of Possession

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Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect.

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Violent, Clandestine, Discontinuous, and Equivocal Possession

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- 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.

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Precarious Possession

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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 (not constructive notice) to the owner/possessor that you now intend to maintain the possession of the thing for yourself. Actual Notice is required.

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Presumption of Precariousness

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A precarious possessor, such as a lessee or a depositary, is presumed to possess for another although he may intend to possess for himself.

• 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.

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Termination of Precarious Possession

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- 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 co-possessor) must only show unambiguous acts which show his intention to possess for himself.

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Protection of Precarious Possession

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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.

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(1) Discontinuity:

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Gaps in the possession; when possession is not exercised at regular intervals. Possession is 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.

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(2) Violence:

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Possession is violent when it is acquired or maintained by violent acts. When the violence ceases, the possession ceases to be violent.

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(3) Secrecy:

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To be useful, possession must be public. The possessor must act without hiding himself, as 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.

• The intent to be secretive is what is important. As soon as concealment ends, effective possession begins and prescription begins to run. Clandestinity is often hard to pull off, especially in real estate.
• Theft is often a matter of clandestinity – the thief has no rights to possess because his theft and secrecy of keeping the stolen thing are a vice of possession.

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(4) Uncertainty

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Possession will be uncertain when one of its attributes, such as continuity, intent to possess as 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.

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Elements Required for Possessory Action

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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) Institution of an Action within 1 year of disturbance.

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Possessory Action (CP)

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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.

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Possessory Action; Venue

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The P in a possessory action shall be one who possesses for himself. A person is entitled to the use or usufruct of immovable property, and one who owns a real right therein, possesses for himself. A predial lessee possesses for and in the name of his lessor, and not for himself. The possessory action shall be brought against the person who caused the disturbance, and the venue provided by Article 80(1), even when the P prays for judgment for the fruits and revenues of the property, or for damages.

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Cumulation with Petitory Action Prohibited

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The P may not bring both a petitory action and a possessory action in the same suit. If the P does so, he waives the possessory action. If the P brings the possessory action, and without dismissing it and prior to judgment therein institutes a petitory action, the possessory action is abated. When the ∆, in a possessory action, asserts title in himself, he thereby converts the suit into a petitory action, and judicially confesses the possession of the P’s in a possessory action. If, before executory judgment in a possessory action, the ∆ therein institutes a petitory action in a separate suit against the P in the possessory action, the P in the petitory action judicially confesses the possession of the ∆ therein.

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Possessory Action; REQUISITES

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To maintain the possessory action, the possessor must allege and prove:

1) He had possession of the immovable property or real right therein at the
time the disturbance occurred;

2) He and his ancestors-in-title had such possession quietly and without interruption for more
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.

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Disturbance in Fact and in Law Defined

Back 111

Disturbances of possession, which give rise to the possessory action, are of 2 kinds: disturbance in fact and disturbance in law.

• 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.

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Title not at Issue; Limited Admissibility of Evidence of Title

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In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not an issue. No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:
1) The possession thereof by party as owner;
2) The extent of the possession thereof by a party;
3) The length of time in which a party and his ancestors-in-title have had possession thereof.

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– Relief which may be Granted to successful P in Judgment; Appeal

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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.

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• Direct, Immediate Authority

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• Direct, Immediate Authority means that you can make all the decisions at your discretion without referring to someone else first, i.e. painting walls, altering landscapes, etc.

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• Exclusive Authority

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• Exclusive Authority is nonetheless limited by the government in many instances, so that the exclusive authority does not mean you can do anything you want.
e You cannot have more than 4 pets in the city of New Orleans, you cannot show pornographic movies on your property within certain zoning ordinances (school zones, etc), you cannot disturb your neighbors from their ownership rights, and you cannot “exclude” cops from coming onto your property if they suspect you of dealing drugs or of other crimes.

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Ownership; Content

Back 116

- 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.
- A buyer and occupant of a residence under a bond for deed contract is the owner of the thing for purposes of the homestead exemption granted to other property owners pursuant to Article VII, Section 20(A) of the Constitution of Louisiana. The buyer under a bond for deed contract shall apply for the homestead exemption each year.

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Resolutory Condition; Real Right in Favor of Other Person

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The right of ownership may be subject to a resolutory condition, and it may be burdened with a real right in favor of another person as allowed by law. The ownership of a thing burdened with a usufruct is designated as naked ownership.

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Necessity of a Person

Back 118

The right of ownership may exist only in favor of a natural person or a juridical person.

• Natural Persons – human beings; when a person is born, their personality applies retroactively to the moment that that person is conceived. So, a divorced father, who is required to pay child support, is required to pay for child support from the moment the child is conceived, so he has to pay for all the pre-birth care of the mother in addition to the care after birth. This also applies to heirship, where the child must be born alive (LA went with the French interpretation rather than the Spanish interpretation that the child must live for 24 hours), and the heirship goes back to the moment of conception.
• Juridical Person – is a some entity that is recognized as a “person” at law. Corporations are the classic example. Juridical Persons can do most of the things that natural persons can do; i.e., Tulane owns a bunch of land.

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Co-Ownership

Back 119

Two or more persons may own the same thing in indivision, each having an undivided share.

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Ownership and Possession Distinguished

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- The ownership and the possession of a thing are distinct.
- Ownership exists independently of any exercise of it and may not be lost by nonuse. Ownership is lost when acquisitive prescription accrues in favor of an adverse possessor.

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Accession

Back 121

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.
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.

1) Usus: the owner has the right to use the thing.

2) Fructus: enjoy the fruits of the property; this includes both the civil fruits and the natural fruits; natural fruits are crops and such; civil fruits are benefits derived from the thing.

• In principle, if someone comes on to your property (and you are the owner), and they make fruits on the property, then you have the right to the fruits. But there are limits.

3) Abusus: the owner has the right to dispose of the thing.

• This also has limits, as we will see. And, there are many differences with this element when it comes to immovables as compared to movables.

• What if there is a very valuable Monet painting, owned by Bob, and Bob dies, and in his will, he asks to be cremated and buried with the painting’s ashes. Is this allowable? YES. Currently, there is no law against this, but should there be? Perhaps for societal reasons?


“Having Title” can mean 2 things.
1) Theoretically, a title is proof of ownership.
2) Technically, a title is merely a piece of paper saying that someone owns something, and in many cases, it is unknown, or hard to tell, who is has the valid title and who has an invalid title, if the title holders are in dispute.

• When you have “valid title” or “good title,” you have ownership. On the exam, refer to title proving ownership as “valid” title.

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Debtor's General Liability

Back 122

Whoever has bound himself personally, is obliged to fulfill his engagements out of all his property, movable and immovable, present and future.

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Debtor's Property Common Pledge; Exceptions to Pro Rata Distribution

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The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference.

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PATRIMONY: “The universality of rights and obligations identified with the person.”**

Characteristics of Patrimony:

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• Only Persons, either natural or juridical, can have patrimonies;
• Every Person has a Patrimony, even if it contains only liabilities;
• The patrimony is indivisible; there is only one per person, and it is inseparable form that person.

e Say someone dies; they have mortgage debts and other debts, but they have $1 million of life insurance, and they have equitable value on the value of their house, plus another $100,000 of value in other belongings (furniture), all this goes into the patrimony – both the debts and the assets.

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UNIVERSAL SUCCESSOR

Back 125

the heir who inherits the patrimony of his ascendant.

- Technically, Patrimony is inseparable, but in reality, with descendents splitting up their ascendants patrimony, patrimony is separable.

Under common law, according to the so-called objective theory, a patrimony is an independent economic unit, a mass of assets and liabilities, tied inseparably until liquidation by the common destination and economic purpose of the elements which compose it.

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Co-Ownership Fundamental Principles (6)

Back 126

1) A co-owner owns the entire property, but with his co-owners.

2) A co-owner may freely use the property for the purposes for which it is destined, but he may not interfere with the right of the other co-owners to the same enjoyment.

3) A co-owner may not, without unanimous consent of the other co-owners, modify or materially change the property or devote it to a use inappropriate to its destination.

4) A co-owner is entitled to share in the fruits, products, or other revenues of the property in proportion to his undivided interest, whether or not he contributed to their production.

5) A co-owner is responsible for a proportionate part of the reasonable cost of maintaining or preserving the property.

6) A co-owner may require partition of the property at any time. Agreements not to partition the property are valid only under restricted circumstances and for limited periods.

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Ownership in Indivision; Definition

Back 127

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.

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Right to Fruits and Products

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- Co-owners share the fruits and products of the thing held in indivision in proportion to their ownership.
- When fruits or products are produced by a co-owner, other co-owners are entitled to their shares of the fruits or products after deduction of the costs of production.

• Fruits: Things that are produced or derived from another thing without diminution of its substance.
• Products: Things that are produced or derived from another thing as a result of the diminution of its substance.
• A co-owner does not have the right to claim compensation for his own labor or services, but he may be entitled to such compensation under unjust enrichment.

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– Liability of a Co-Owner

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A co-owner is liable to his co-owner for any damage to the thing held in indivision caused by his fault.

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Preservation of the Thing

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A co-owner may without the concurrence of any other co-owner take necessary steps for the preservation of the thing that is held in indivision

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– Use and Management by Agreement

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The use and management of the thing held in indivision is determined by agreement of all the co-owners.

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Right to Use the Thing

Back 132

Except as otherwise provided in Article 801, a co-owner is entitled to use the thing held in indivision according to its destination, but he cannot prevent another co-owner from making such use of it. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner.

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Use and Management of the Thing in the Absence of Agreement

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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.

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Substantial Alterations or Improvements

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- Substantial alterations or substantial improvements to the thing held in indivision may be undertaken only with the consent of all the co-owners.
- When a co-owner makes substantial alterations or substantial improvements consistent with the use of the property, though without the express or implied consent of his co-owners, the rights of the parties shall be determined by Article 496. When a co-owner makes substantial alterations or substantial improvements inconsistent with the use of the property or in spite of the objections of his co-owners, the rights of the parties shall be determined by Article 497.

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Disposition of Undivided Share

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A co-owner may freely lease, alienate, or encumber his share of the thing held in indivision. The consent of all the co-owners is required for the lease, alienation, or encumbrance of the entire thing held in indivision.

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Expenses of Maintenance and Management

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- A co-owner who on account of the thing held in indivision has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares.
- If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement shall be reduced in proportion to the value of the enjoyment.

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Right to Partition; Exclusion by Agreement

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- No one may be compelled to hold a thing in indivision with another unless the contrary has been provided by law or juridical act.
- Any co-owner has a right to demand partition of a thing held in indivision. Partition may be excluded by agreement for up to fifteen years, or for such other period as provided in R.S. 9:1702 or other specific law.

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– Partition Excluded

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Partition of a thing held in indivision is excluded when its use is indispensable for the enjoyment of another thing owned by one or more of the co-owners.

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Judicial and Extrajudicial Partition

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The mode of partition may be determined by agreement of all the co-owners. In the absence of such an agreement, a co-owner may demand judicial partition.

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Partition in Kind

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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.
When a thing is partitioned in kind, a real right that burdens the share of a co-owner attaches to the part of the thing allotted to him.

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Partition by Licitation or by Private Sale

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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.

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Effect of Partition on Real Rights

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When a thing held in indivision is partitioned in kind or by licitation, a real right burdening the thing is not affected.

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Rescission of Partition for Lesion

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An extrajudicial partition may be rescinded on account of lesion if the value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion he should have received.

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– Partition by Licitation

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When a thing is partitioned by licitation, a mortgage, lien, or privilege that burdens the share of a co-owner attaches to his share of the proceeds of the sale.

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Partition in Kind; Warranty

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When a thing is partitioned in kind, each co-owner incurs the warranty of a vendor toward his co-owners to the extent of his share.

Front 146

– Imprescriptibility of Action

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The action for partition is imprescriptible.

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Other Rights held in Indivision

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The provisions governing co-ownership apply to other rights held in indivision to the extent compatible with the nature of those rights.

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Co-Ownership in Louisiana is in Indivision. What does that mean?

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• It means that every co-owner of the property owns a share of every molecule of the property, as Planiol puts it. It doesn’t mean that each co-owner owns a different part of the property (where one person owns the walls, and another person owns the roof); it means that every co-owner owns a share of every molecule, or a share of the smallest unit of the property, so that pretty much, each co-owner owns the whole property.
• Each co-owner owns an equal share, the size of the share dependent on the number of co-owners. This is true unless there is an agreement between the co-owners which states another apportionment scheme.
• 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.

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Partition; How Indivision Ends:

Back 149

• The state of indivision is terminated by “partition,” which attributes to each owner a divided share in the thing instead of the undivided share he previously had. Partition is thus a juridical act with the inherent function of terminating indivision by separating the thing into shares or lots.

• 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.

Partition is preferred by an agreement between the co-owners. If that cannot happen, the court, upon a petition, can grant a court order enforcing partition. When the court order is granted, it can either be “in kind” or a sale. If it’s a sale, then the court gives the co-owners another chance to make an agreement regarding the sale. If the co-owners cannot agree on the sale terms, the court then orders licitation.

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Perpetual Indivision:

Back 150

There are instances where the indivision is destined to last forever and where application can never be made for partition. This is what is known as forced indivision. The cases where perpetual indivision may arise are very few, but there are nonetheless some examples:
• The most common examples are with things that that are destined to the common use of several pieces of property.
1) The narrow streets, passages, alleys, and courtyards that are common to several houses;
2) The soil and certain parts of houses divided into stories by several owners; and
3) The walls, hedges, and other party enclosures. This is the most frequent example of things held in perpetual indivision.

• Because a co-owner can demand partition at any time, and because no one can be compelled to hold property with another (unless it has been agreed upon), Co-Ownership is essentially a voluntary relationship dependent for its existence upon the continued will of the owners. This has caused it to sometimes be analogous to partnerships, but co-owners are not fiduciaries for each other, unlike partners, although their agreements may sometimes create a partnership between them. A co-owner is not bound for the obligations of the other co-owners – not even for those debts incurred for the improvement of the co-owned property.

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Partition Principles

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The purpose of partition is to eliminate co-ownership. It can either be effected conventionally, through the consent of all the parties, or judicially, and against the will of some of them.

• Mortgages, servitudes, or other charges against the property created by all the owners or their predecessors are unaffected by partition, conventional or judicial, whether in kind or by licitation.

1) Conventional Partition is accomplished by mutual agreement between all the co-owners, whereby each co-owner either gets an equal share of the wholly-owned property, or a share established by a stipulation of the agreement. Courts are not necessary with this type of partition.

2) Judicial Partition can accomplished when a co-owner petitions the court, usually when there is a disagreement between the co-owners. In this case, judicial partition can be accomplished either in kind, by dividing the property into lots and awarding each co-owner full ownership of one or more of them, or by licitation, that is, selling the property at a public sale and dividing the proceeds among the owners in proportion to their interests.

(a) Judicial Partition “in Kind”
Judicial Partition is accomplished in kind unless “it is impracticable to do so in light of the rules regulating the matter, or unless “it is impossible to divide the property in kind or when its indivision would cause a loss to the co-owners.”
- The CC declares that judicial partition in kind is the preferred method.
- When there is judicial partition in kind, a notary, appointed by the court, is directed to divide the property into discrete lots of substantially equal value.
- The co-owners then draw for the lots in rotation; that is, the lots are assigned by chance, not by designation.
- The rules governing partition in kind often make partition in kind impracticable, except for the simplest of cases. These rules are:
1. There must be as many lots as the least common denominator or the fractional ownership of the various parties.
2. The lots must be of substantially equal value, although minor variations in value may be compensated by ordering payment to equalize the discrepancy.
3. The aggregate value of the individual lots must substantially equal the value of the entire undivided property before the partition.
4. If there are mineral rights created by less than all the parties, the “surface” and “mineral” values of each lot must be proportionate to the value of the interests of the mineral and “surface” owners in the whole.

(b) Judicial Partition by Licitation
In this case, the co-owned property is sold at public auction, without appraisal, to the highest bidder

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INTERESTS IN TRUSTS

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In LA, there is neither the need nor room for a fragmentation of ownership into the components of legal title and equitable interest. The trustee has a legal right that permits him to manage and dispose of trust property. The beneficiary has likewise a real right, which is ownership subject to trust, that is, ownership without power of administration and disposition. Thus, financially, the trust device has been accommodated in LA without the implications of split ownership, which is unknown to civil law.

 Trusts are a Common Law Concept.

Essentially, a trust “splits” the qualities of ownership:

• Beneficiary – have the equitable ownership (this is the actual, initial owner)

• Trustee – this person has legal ownership and the decision-making power; the trustee makes all the legal decisions, but the beneficiary remains the equitable owner (and when it comes time to say who owns the property, in case of a dispute between the trust and the beneficiary, the beneficiary is the true owner).

A trust is not an entity; it is a relationship – the only way to make the trust an entity is by adopting it into a business form.

e Large corporations and/or Universities often use trusts, in which they have certain people act as the trustees to make all the decisions for the University (the beneficiary). This is often called the “Board” or even the Board of Trustees.

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Modes of Acquiring Ownership

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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

• Acquisitive Prescription
• Accession
• Occupancy – the taking of what belongs to no one; this is limited in its use today.
 Res Nullius: things which have never belonged to anyone; wild animals, and fish are things belonging to no one; so thus, when hunters kill or capture wild animals, those animals are theirs.
 Res Derelictae: abandoned things; these things thus belong to no one, and whoever takes possession of the thing after it is abandoned, can become its owner.
• Lost things

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Voluntary Transfer of Ownership of an Immovable

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The ownership of an immovable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the immovable. The transfer of ownership takes place between the parties by the effect of the agreement and against third persons when the contract is filed for registry in the conveyance records of the parish in which the immovable is located.

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Voluntary Transfer of the Ownership of a Movable

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- The ownership of a movable is voluntarily transferred by a contract between the owner and the transferee that purports to transfer the ownership of the movable. Unless otherwise provided, the transfer of ownership takes place as between the parties by the effect of the agreement and against third persons when the possession of the movable is delivered to the transferee.
- When possession has not been delivered, a subsequent transferee to whom possession is delivered acquires ownership provided he is in good faith. Creditors of the transferor may seize the movable while it is still in his possession.

• If there are 2 transferees of 1 immovable, both in good faith, then the dispositive question is who recorded first, pursuant to Louisiana’s “Pure Race” system.

Front 156

Transfer of Action for Recovery of Movable

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When a movable is in the possession of a third person, the assignment of the action for the recovery of that movable suffices for the transfer of its ownership.

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Lost or Stolen Thing

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One who has possession of a lost or stolen thing may not transfer its ownership to another. For purposes of this Chapter, a thing is stolen when one has taken possession of it without the consent of its owner. A thing is not stolen when the owner delivers it or transfers its ownership to another as a result of fraud.

• Latin saying applicable to this article/principle: “No One can Transfer More than he Has”

Front 158

Transfer of Ownership by Owner Under Annullable Title

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A transferee of a corporeal movable in good faith and for fair value retains the ownership of the thing even though the title of the transferor is annulled on account of a vice of consent.

Front 159

Good faith; Definition

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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.

• In reconciling CC Art 521 with CC Art 524, a question to consider is whether you buy the thing from someone who should be reasonably expected to be selling the thing? Does the sale look suspicious?

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Recovery of Lost or Stolen Things

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- 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.

e If one person can show that an antique was stolen from his tomb, and that the possessor of the antique, who purchased it in good faith, is now actually possessing a stolen antique, then the person is entitled to recover the antique from the possessor, but he must reimburse her for her purchase price. The reason to make the owner of the stolen thing have to reimburse the good faith purchaser is because of policy concerns about commerce, and policy concerns about commerce override even the favorability for ownership.

e The Perls bought a Chagal painting in Paris for $2,800, and sold it to the Lists for $4,000. 7 years later, Menzel (a Jew) arrives on the scenes and makes a claim that she actually owns the painting (she bought it for $150 in 1930), but during the Holicost, she fled and the Nazis seized it. Menzel is the rightful owner, and since List was a good faith purchaser, the Menzels have to reimburse List for the purchase price. But as time has passed, the painting now is worth $22,500. The only question is: what is the amount to reimburse to the Lists? The amount for the purchase price, or the amount of the painting now? List is reimbursed the amount of the purchase price, adjusted to fit the current market for the painting. This case illustrates the problem when movables are in fact more valuable than many immovables; the CC does not provide for as much protection of transfer of movables, and that is often a problem.

e Tom gets a family vase from his aunt, who gives it to him to hold for her. Tom fraudulently takes the vase and sells it to an antique store, who purchases the vase in good faith and at fair value. The antique store is now the owner of the vase (if Tom had stolen the vase, that would be different, because he never had ownership and “you can’t transfer more than you have”). For the purposes of this chapter, fraud does not result in the thing being stolen. The aunt can get the vase back only buy reimbursing the antique store for the purchase price. But, what if the antique store then sold it to Buddy, who knew that Tom had fraudulently sold the vase to the store? Does it matter what kind of faith Buddy is in, or if he buys it at fair value, considering that he knew of Tom’s misdoings?

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Registered Movables

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The provisions of this Chapter do not apply to movables that are required by law to be registered in public records.

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Property Rights may be acquired in a variety of ways:

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• By the occupancy of things that belong to no one;
• By transfer from a previous owner, or even by a non-owner;
• By operation of law;
• By the effect of Judgments; and
• By acts of Public Authorities.

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There are Two Types of Successors:

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1) The successor by universal title, such as the heir, the universal legatee, or legatee by universal title;
2) The successor by particular title, such as the buyer, donee, or legatee of only particular things.

• The universal successor represents the person of the deceased, and succeeds to all his rights and charges.
• The particular successor succeeds only to the rights appertaining to the thing which is sold, ceded, or bequeathed to him.

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Accession

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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.

e Alluvion and Dereliction are examples of acquired ownership by accession, because the new land naturally appends itself to the existing land and thus becomes united with it.

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– Ownership of Fruits by Accession

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In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits.

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Young of Animals

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The young of animals belong to the owner of the mother of them.

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– Fruits Produced by a Third Person; Reimbursement

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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.

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Possessor's Right to Fruits

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- A possessor in good faith acquires the ownership of fruits he has gathered. If he is evicted by the owner, 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.

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Possessor in Good Faith; Definition (Accession)

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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.

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Products; Reimbursement of Expenses

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Products derived from a thing as a result of diminution of its substance belong to the owner of that thing. When they are reclaimed by the owner, a possessor in good faith has the right to reimbursement of his expenses. A possessor in bad faith does not have this right.

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Apportionment of Fruits

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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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ACCESSION FOR IMMOVABLES

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• General Rule (Swiss Code)
- Swiss Civil Code: “Ownership in land and soil reaches above and underneath into the air and the earth so far as the exercise of the ownership requires. It embraces all buildings and plants as well as springs, subject to legal restrictions.”
• 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.

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Louisiana Mineral Code

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Ownership of Solid Minerals – Ownership of land includes all minerals occurring naturally in a solid state. Solid minerals are insusceptible of ownership apart from the land until reduced to possession.

Right to search for fugitive minerals; elements of ownership of land – Ownership of land does not include ownership of oil, gas, and other minerals occurring naturally in liquid or gaseous form, or any elements or compounds in solution, emulsion, or association with such minerals. The landowner has the exclusive right to explore and develop his property for the production of such minerals and to reduce them to possession and ownership.

Landowner’s Right of Enjoyment for Mineral Extraction – A landowner may use and enjoy his property in the most unlimited manner for the purpose of discovering and producing minerals, provided it is not prohibited by law. He may reduce to possession and ownership all of the minerals occurring naturally in a liquid or gaseous state that can be obtained by operations on or beneath his land even though his operations may cause their migration from beneath the land of another.

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Accession Above and Below the Surface

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- Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it.
- The owner may make works on, above, or below the land as he pleases, and draw all the advantages that accrue from them, unless he is restrained by law or by rights of others.

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Buildings, Other Constructions, Standing Timber, and Crops

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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.

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Separate Ownership of Part of a Building

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Separate ownership of a part of a building, such as a floor, an apartment, or a room, may be established only by a juridical act of the owner of the entire building when and in the manner expressly authorized by law.

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Ownership of Improvements

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- Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made without his consent.
- When the owner of buildings, other constructions permanently attached to the ground, or plantings no longer has the right to keep them on the land of another, he may remove them subject to his obligation to restore the property to its former condition. If he does not remove them within ninety days after written demand, the owner of the land may, after the ninetieth day from the date of mailing the written demand, appropriate ownership of the improvements by providing an additional written notice by certified mail, and upon receipt of the certified mail by the owner of the improvements, the owner of the land obtains ownership of the improvements and owes nothing to the owner of the improvements. Until such time as the owner of the land appropriates the improvements, the improvements shall remain the property of he who made them and he shall be solely responsible for any harm caused by the improvements.
- When buildings, other constructions permanently attached to the ground, or plantings are made on the separate property of a spouse with community assets or with separate assets of the other spouse and when such improvements are made on community property with the separate assets of a spouse, this Article does not apply. The rights of the spouses are governed by Articles 2366, 2367, and 2367.1.

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Ownership of Component Parts

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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.

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Loss of Ownership by Accession; Claims of Former Owner

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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

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Constructions by Landowner with Materials of Another

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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.

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Things Incorporated in, or Attached to, an Immovable, with Consent

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- 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.

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Constructions by Possessor in Good Faith

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When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value, or the enhanced value of the immovable.

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Constructions by Bad Faith Possessor

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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, 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.

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Claims Against Third Persons

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One who has lost the ownership of a thing to the owner of an immovable may assert against third persons his rights under Articles 493, 493.1, 494, 495, 496, or 497 when they are evidenced by an instrument filed for registry in the appropriate conveyance or mortgage records of the parish in which the immovable is located.

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Alluvion and Dereliction

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- Accretion formed successively and imperceptibly on the bank of a river or stream, whether navigable or not, is called alluvion. The alluvion belongs to the owner of the bank, who is bound to leave public that portion of the bank which is required for the public use.
- The same rule applies to dereliction formed by water receding imperceptibly from a bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction.

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Shore of the Sea or of a Lake

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There is no right to alluvion or dereliction on the shore of the sea or of lakes.

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Division of Alluvion

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Alluvion formed in front of the property of several owners is divided equitably, taking into account the extent of the front of each property prior to the formation of the alluvion in issue. Each owner is entitled to a fair proportion of the area of the alluvion and a fair proportion of the new frontage on the river, depending on the relative values of the frontage and the acreage.

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Sudden Action of Waters

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If a sudden action of the waters of a river or stream carries away an identifiable piece of ground and unites it with other lands on the same or on the opposite bank, the ownership of the piece of ground so carried away is not lost. The owner may claim it within a year, or even later, if the owner of the bank with which it is united has not taken possession.

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Island Formed by River Opening a New Channel

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When a river or stream, whether navigable or not, opens a new channel and surrounds riparian land making it an island, the ownership of that land is not affected.

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Ownership of Abandoned Bed when River Changes Course

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- When a navigable river or stream abandons its bed and opens a new one, the owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity of land that he lost.
- If the river returns to the old bed, each shall take his former land.

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Islands and Sandbars in Navigable Rivers

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Islands, and sandbars that are not attached to a bank, formed in the beds of navigable rivers or streams, belong to the state.

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Ownership of Beds of Non-Navigable Rivers or Streams

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In the absence of title or prescription, the beds of nonnavigable rivers or streams belong to the riparian owners along a line drawn in the middle of the bed.

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Occupancy

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Occupancy is a mode of acquiring a thing that doesn’t belong to anyone. It is done by taking possession of the thing with the intent of becoming owner of the thing. This mode of acquisition therefore consists solely in the taking of possession. Nothing needs to be added to this to define it. But the inquiry must be made regarding what things may be “occupied,” and then rules applicable to certain cases must be studied.

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Occupancy (CC)

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Occupancy is the taking of possession of a corporeal movable that does not belong to anyone. The occupant acquires ownership the moment he takes possession.

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Wild animals, Birds, Fish, and Shellfish

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- Wild animals, birds, fish, and shellfish in a state of natural liberty either belong to the state in its capacity as a public person or are things without an owner. The taking of possession of such things is governed by particular laws and regulations.
- The owner of a tract of land may forbid entry to anyone for purposes of hunting or fishing, and the like. Nevertheless, despite a prohibition of entry, captured wildlife belongs to the captor.

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Loss of Ownership of Wildlife

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If wild animals, birds, fish, or shellfish recover their natural liberty, the captor loses his ownership unless he takes immediate measures for their pursuit and recapture.

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Wildlife in Enclosures

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- Wild animals or birds within enclosures, and fish or shellfish in an aquarium or other private waters, are privately owned.
- Pigeons, bees, fish, and shellfish that migrate into the pigeon house, hive, or pond of another belong to him unless the migration has been caused by inducement or artifice.

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Tamed Wild Animals

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Tamed wild animals and birds are privately owned as long as they have the habit of returning to their owner. They are considered to have lost the habit when they fail to return within a reasonable time. In such a case, they are considered to have recovered their natural liberty unless their owner takes immediate measures for their pursuit and recapture.

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Domestic Animals

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Domestic animals that are privately owned are not subject to occupancy.

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Abandoned Things

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One who takes possession of an abandoned thing with the intent to own it acquires ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.

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Lost Things

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- One who finds a corporeal movable that has been lost is bound to make a diligent effort to locate its owner or possessor and to return the thing to him.
- If a diligent effort is made and the owner is not found within three years, the finder acquires ownership.

e What if a man finds a very expensive ring, makes a diligent search for 5 years (more than 3 years) and then, the true owner (after 3 years) sees the ring on the finder’s wife at a party, inquires about it, and realizes the ring is his. Can he get it back? Not really, according to the CC.

e Another consideration is that with things which are lost that have high value, the owner probably had it insured. If the owner gets reimbursed by his insurance, and gets another ring, should he be able to get his old one back, if he finds it? After 3 years? Before 3 years?

• There are many questions in regard to the “lost things” article. What constitutes a “diligent” effort? When does the 3 years begin? At the loss or at the find? Can the time of 3 years accumulate from a finder to a pawn shop?

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Treasure

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- One who finds a treasure in a thing that belongs to him or to no one acquires ownership of the treasure. If the treasure is found in a thing belonging to another, half of the treasure belongs to the finder and half belongs to the owner of the thing in which it was found.
- A treasure is a movable hidden in another thing, movable or immovable, for such a long time that its owner cannot be determined.

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There are Three Types of Prescription:

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CC Art 3446 – Acquisitive Prescription
Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.
CC Art 3447 – Liberative Prescription
Liberative Prescription is a mode of barring actions as a result of inaction for a period of time.
CC Art 3448 – Prescription of Non-Use
Prescription of non-use is a mode of extinction of a real right other than ownership as a result of failure to exercise the right for a period of time.

Prescription is the effect of the passage of time on legal rights; its purpose is to create stability; after a certain period of time, people should have certainty as to what they own.

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.

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Interruption

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Interruption occurs when the time you have built up in prescription is wiped out by some action.
Three things interrupt possession:
1) commencement of an action by the true owner against the possessor; the true owner either filing suit against the possessor in the court of proper venue, or actually serving the possessor if the suit is filed in an improper court.
2) the possessor acknowledging the true owner; this can be tacit through acquiescence, or express through verbal or written acknowledgment.
3) and the loss of possession by the possessor; if you are interrupted in your possession but regain it within a year then you do not have to start all over for purposes of acquisitive prescription.

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Suspension

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Suspension is really a “time-out” for purposes of prescription. Possession is suspended for a certain time so that it does not run for the purpose of prescription. But when this period is over, the prescription picks up where it left off and continues to run again without starting over. (CC Art 3469)

e Prescription is suspended between: spouses during marriage, parents and children during minority, tutors and minors during tutorship, caretakers and interdicts during interdiction, and caretakers and minors during minority.

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Renunciation

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Prescription may be renounced only after it has accrued. (CC Art 3449) With immovables, renunciation must be expressed and in writing. Those without capacity (minors, interdicts) cannot renounce their prescription.

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Express or Tacit Renunciation

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- 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.

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Necessity for Pleading Prescription

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Prescription must be pleaded. Courts may not supply a plea of prescription.

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Limitations on Prescription

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• Federal Limitations: If a conflict exists between a prescriptive statute and a federal provision, the federal provision trumps.
• LA Constitution Exemptions:
- Prescription does not run against the State.
- School Boards and Levee Districts cannot be prescribed against.
- Other political subdivisions are subject to liberative and acquisitive prescription.

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Requirements for 10 Year Acquisitive Prescription
There are 5 requirements for 10 YEAR acquisitive prescription. The book has 4 but Carriere uses 5 requirements.

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1) There has to be a Prescriptable Object:
• Public Things of the state are not prescriptable.
• Private things of the state are not prescriptable.
• So, in general, state property is not prescriptable.

• But, there are exceptions. The state has political subdivisions, which own land. These political subdivisions can generally be prescribed against. But, there are exceptions to this. These state political subdivisions can NOT be prescribed against:
- School Districts – cannot be prescribed against
- Levee Boards – cannot be prescribed against

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.

3) Good Faith
• 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 acquire begin acquisitive prescription, at the initiation of possession.

4) Possession for…
• Both the corpus and animus are necessary for possession.
• Corporeal, Civil, and Constructive possession suffice.

5) 10 Years

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Prescription of Ten Years

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Ownership and other real rights in immovables may be acquired by the prescription of ten years.

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– Incompetents

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This prescription runs against absent persons and incompetents, including minors and interdicts.

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Requisites

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The requisites for the acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription.

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Things Susceptible of Prescription

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All private things are susceptible of prescription unless prescription is excluded by legislation.

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Just Title

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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.

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Transfer of Undivided Part of an Immovable

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A just title to an undivided interest in an immovable is such only as to the interest transferred.

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Good Faith - Acquisitive Prescription

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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. There is a different definition for matters of accession. (CC Art 487) The reasons why two definitions are needed are explained in the comments under CC Art 487. In short, for purposes of prescription, good faith and just title are separate ideas, whereas for purposes of accession, the two ideas are blended.
• According to certain decisions interpreting this article, good faith is a subjective belief of the possessor that he owns the thing he possesses. However, according to prevailing jurisprudence, good faith is determined in the light of objective considerations. CC Art 3480 codifies this jurisprudence. It declares that a possessor is in good faith when he reasonably believes that he is owner of the thing he possesses. The trier 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. The crucial consideration is whether the presumption of good faith has been rebutted; thus it should be decided under CC Art 3481.

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Presumption of Good Faith

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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.

• Good faith is presumed. Thus, one who alleges the possessor is not in good faith has the burden of proving his allegation. The presumption of good faith is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses. According to CC Art 3480, good faith is determined in the light of objective considerations. Correspondingly, bad faith is determined in the light of similar considerations. Thus, the presumption of good faith is rebutted on proof that a reasonable person in the position of the possessor should know that he is not owner of the property.

• According to Louisiana jurisprudence, an acquirer of immovable property is not bound to search the public records unless he knows facts sufficient to excite inquiry. In such a case, the acquirer is charged with the knowledge that a reasonable person would acquire from the public records, and the presumption of good faith may be rebutted. The same is true when an acquirer voluntarily undertakes to search the public records: he also is charged with the knowledge that a reasonable person would acquire from the public records, and the presumption of good faith may be rebutted.

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Good Faith at Commencement of Prescription

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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.

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Tacking Principles – Good Faith & Bad Faith

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• There can be no gaps in possession. Civil possession should suffice, but sometimes it doesn’t 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.

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• Universal Successors have different tacking rules:

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 Universal successors inherit the characteristics of their descendants. So, if your decedent is in good or bad faith, and you use their possession for the purposes of acquisitive prescription, then you inherit their good/bad faith, even if you had no clue as to what kind of faith they had.
 Tacking is unnecessary and pointless for universal possessors because “tacking” is automatic, in a sense, when a universal successor inherits property, and the good/bad faith is also inherited.

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Requirements for 30 Year Acquisitive Prescription:

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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.

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– Immovables; Prescription of Thirty Years

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Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith.

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Restriction as to Extent of Possession

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For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed.
• Constructive possession is thus not applicable for 30 year acquisitive prescription.
• Actual possession is determined by the nature of the property.

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Applicability of Rules Governing Prescription of Ten Years

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The rules governing acquisitive prescription of ten years apply to the prescription of thirty years to the extent that their application is compatible with the prescription of thirty years.

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Determination of Ownership according to Prescription

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When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles. If a party and his ancestors-in-title possessed for 30 years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

DISSENT: P’s adverse possession of the disputed tract is adverse to ∆, but P himself only has a 1/12 interest in the property; there is no juridical link between P’s father and his successors and therefore the successors (who each got an undivided interest) cannot possess for themselves.

• Many claim this case was decided incorrectly; but, it was decided correctly, just by use of the wrong CC article.

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Requirements for Acquisitive Prescription of Movables:

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 Three Year Acquisitive Prescription:
1. Prescriptable Object
2. Good Faith
3. Act Translative of Ownership
4. 3 Years of Possession

 Ten Year Acquisitive Prescription:
1. Prescriptable Object
2. 10 Years of Possession

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Movables; Acquisitive Prescription

Back 228

Ownership and other real rights in movables may be acquired either by the prescription of three years or by the prescription of ten years.

Front 229

Prescription of Three Years

Back 229

One who has possessed a movable as owner, in good faith, under an act sufficient to transfer ownership, and without interruption for three years, acquires ownership by prescription.

Front 230

Prescription of Ten Years

Back 230

One who has possessed a movable as owner for ten years acquires ownership by prescription. Neither title nor good faith is required for this prescription.

Front 231

– Interruption of Acquisitive Prescription

Back 231

- Acquisitive prescription is interrupted when possession is lost.
- 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.