Building Restrictions Flashcards
How does zoning varience affect a building restriction?
(Question with this first discusses creation of valid restriction, focuses on reciprocal nature of building restriction such that all owners are bound, and any subject to the restriction may sue to enforce) Zoning variance is irrelevant to enforcement.
What are building restrictions?
Charges imposed by the owner of an immovable pursuant to a general plan that governs building standards, uses, improvements.
The plan must be FEASIBLE, CAPABLE OF BEING PRESERVED.
They create reciprocal rights and charges on all affected lots.
(Question about classification of covenant in act of sale…look for general plan, charge on immovable) Otherwise it will be affirmative or negative predial servitude.
What are the ways to enforce a valid building restricton?
Mandatory and prohibitory injunctions without regard to limitations of civil procedure. Violators of building restrictions may be sued for damages. all landowners in a subdivision are adversely affected by violations and have substantive and procedural right to sue.
What are the defenses to building restrictions
liberative prescription- no suit may be brought after two years of commencement of noticable violation. after two years the immovable is freed of restriction that was violated
abandonment- terminate by abandonment of the whole plan or of particular restriction. courts will look to percentage of abandonment.
do co owners have right to compel adjacent owner to remove portion of his (car wash) extending on to their tract for 22 years?
Since encroaching building in place for 22 years, adjacent owner hasn’t acquired ownership of land by possession only, and must have just title and good faith in addition to possession at this point. If he has neither, he will want to argue he qualifies for the legal servitude fro an encroaching building. There are two requirements which must be met:
1. Good faith at time of construction
2. Owner(s) of land encroached on must not have complained within reasonable time, or failed to complain before substantial completion
If both requirements are met, there is no automatic legal servitude, this just invests the court with discretion to award predial servitude to owner of the building. If the court does this, he will owe co owners for value of servitude and other damages.
How may building restrictions be terminated or amended?
As provided in an act, or if the act is silent, they may be terminated or amended by agreement of specified percentage of owners. If in place for 15 years, 1/2, if in place 10 years 2/3.
