Civil Code I

Question 1

An award of periodic spousal support

(a) shall be extinguished and terminated upon the subsequent remarriage of the obligor spouse.
(b) may be extinguished and terminated upon the subsequent remarriage of the obligor spouse.
(c) shall be extinguished and terminated upon the subsequent remarriage of the obligee spouse.
(d) may be extinguished and terminated upon the subsequent remarriage of the obligee spouse.

Answer 1

C. shall be extinguished and terminated upon the subsequent remarriage of the obligee spouse.

The obligation of spousal support is extinguished upon the remarriage of the obligee, the death of either party, or a judicial determination that the obligee has cohabited with another person of either sex in the manner of married persons. [La. Civ. Code art. 115]

Question 2

In a divorce action, a claim for contributions made to the education or training of a spouse

(a) prescribes in two years from the date of the filing for divorce or for annulment of the marriage.
(b) prescribes in three years from the date of the signing of the judgment of divorce or declaration of nullity of the marriage.

(c) prescribes in four years from the date of the signing of the judgment of divorce or
declaration of nullity of the marriage.

(d) shall terminate upon the remarriage or death of either spouse.

Answer 2

B. prescribes in three years from the date of the signing of the judgment of divorce or declaration of nullity of the marriage.

The action for contributions made to the education or training of a spouse prescribes in three years from the date of the signing of the judgment of divorce or declaration of nullity of the marriage.
[La. Civ. Code art. 124]

Question 3

A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights

(a) if the court finds, after a hearing, that visitation would be in the best interest of the child.
(b) if the custodial parent dies or is incarcerated.
(c) unless the court finds, after a hearing, that visitation would result in substantial harm to the child.
(d) unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

Answer 3

D. unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child. [La. Civ. Code art. 136(A)]

Question 4

An action for disavowal of paternity prescribes one year

(a) after the husband learns or should have learned of the birth of the child if the husband lived separate and apart from the mother continuously during the 300 days immediately preceding the birth of the child.
(b) after the birth of the child unless the husband lived separate and apart from the mother continuously during the 300 days immediately preceding the birth of the child.

(c) after the husband is notified in writing that a party in interest has asserted that the
husband is the father of the child.

(d) after the husband dies if the husband dies within one year after he learns or should have learned of the birth of the child.

Answer 4

D. after the husband dies if the husband dies within one year after he learns or should have learned of the birth of the child.

Article 190 provides that the heir has one year from the death of the husband to file suit to disavow if the husband dies before prescription has accrued. Although the answer does not make clear that only a successor whose interest is adversely affected may institute the action for disavowal or that the parents are living together (and therefore prescription had begun to run), the answer above is the best choice. An action for disavowal of paternity does prescribe for a successor whose interest has been adversely affected one year after the husband dies if the husband dies within one year after he learns or should have learned of the birth of the child, assuming of course that the husband was not living separate and apart from the mother for the 300 days immediately preceding the birth of the child.

Question 5

If the child at issue is still alive when an action to establish paternity is filed, the action may be instituted

(a) by the child within one year after the death of the alleged father.
(b) by the child within nineteen years from the day of the child’s birth, or within one year after the death of the alleged father, whichever first occurs.
(c) by the mother within one year from the day of the birth of the child.
(d) by a man within one year from the date he knew or should have know of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.

Answer 5

A. by the child within one year after the death of the alleged father.

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence. For purposes of succession only, this action is subject to
a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father. [La. Civ. Code art. 197]

(NOTE: This question is poorly written. Keep in mind that for the child’s action under article 197, the one-year peremptive period only applies for succession purposes. So, if the child has the requisite proof, he might be able to establish a filial link to the man for other purposes.)

Question 6

6. Under the Civil Code, the state owns
   (a) the banks of any river that is naturally navigable.
   (b) the portion of the seashore over which the tide waters of the sea spread during the winter season.
   (c) common things such as the high seas.
   (d) public things such as streets and public squares.

Answer 6

D. public things such as streets and public squares.

Choice D is the best of the four. The Code cites streets and public squares as examples of “public things that may belong to political subdivisions of the state,” [La. Civ. Code art. 450, ¶3], though the state might also own streets and public squares.

Choice A is clearly wrong because the banks of navigable rivers are private things subject to public use. [La. Civ. Code art. 456] Choice B is inaccurate because seashore, although owned by the state, is defined as “the space of land over which the waters of the sea spread in the highest tide
during the winter season.” [La. Civ. Code art. 451] The state owns seashore and not only a portion thereof. Choice C is wrong because high seas are common things owned by no one. [La. Civ. Code art. 449]

Question 7

Under the Civil Code, the platform is classified as

(a) an immovable because it is permanently attached to the ground.
(b) an immovable because it has a building located on the platform.
(c) a movable because it is not owned by the owner of the ground and is not a considered to be a building.
(d) a movable because it is considered an other construction permanently attached to the ground.

Answer 7

C. a movable because it is not owned by the owner of the ground and is not a considered to be a building.

The platform is an “other construction permanently attached to the ground” which is classified as immovable if it is a component part of the tract of land. [See La. Civ. Code art. 463] If it is not a component part of the land, it is movable. [See La. Civ. Code art. 475; see La. Civ. Code art. 464 revision comment (d) and La. Civ. Code art. 508 revision comment] Here, it is not owned by the owner of the ground so it is movable.

Question 8

Under the Civil Code, the bunkhouse/mess hall is classified as

(a) an immovable because it is permanently attached to the ground.
(b) an immovable because it is considered to be a building.
(c) a movable because it is not owned by the owner of the ground.
(d) a movable because it constitutes a component part of the platform.

Answer 8

B. an immovable because it is considered to be a building.

The Louisiana Supreme Court has held that a three-story high living quarters unit constructed for placement offshore on a drilling platform was a building. [See P.H.A.C. Services v. Seaways International, Inc., 403 So. 2d 1199 (La. 1981)] The bunkhouse/mess hall seems smaller than the living quarters unit considered in the P.H.A.C. case, since the bunkhouse/mess hall only sleeps ten people. Nevertheless, it has a number of rooms and its purpose is to house people, so it is most likely a building. According to the Civil Code, a building is always immovable, whether it is a component part of a tract of land, which is not the case here, or whether it belongs to someone other than the owner of the ground, which is the case here, since the bunkhouse/mess hall is owned by the oil
company. [See La. Civ. Code arts. 463 and 464]

Question 9

Under the Civil Code, the shower is classified as

(a) an immovable because it is permanently attached to the ground.
(b) an immovable because it constitutes a component part of a building.
(c) a movable because it is not owned by the owner of the ground.
(d) a movable because it constitutes a component part of the platform.

Answer 9

B. an immovable because it constitutes a component part of a building.

Choice B (an immovable because it constitutes a component part of a building)
is the only logical choice.  The built-in shower is indisputably a component part of the building.  Multiple arguments are possible: first, that it was incorporated into the building so as to become an integral part thereof [See La. Civ. Code art. 465]; second, that it was attached to a residential building and under prevailing notions, a shower serves to complete a building of this general type [See La. Civ. Code art. 466, ¶1]; and third, that its removal from the building would cause substantial harm to it and/or to the building.  [See La. Civ. Code art. 466, ¶3] 

Choice A is clearly wrong — the shower is not attached to the ground. Choice C is clearly wrong the absence of unity of ownership between the ground and the shower does not mean the shower is
movable. Choice D is clearly wrong because the shower is attached to the building and not the platform.

Question 10

Immediately upon the expiration of the oil and gas lease

(a) the oil company may remove the platform at the oil company’s expense, with or without
the landowner’s consent.

(b) the landowner may remove the platform at the oil company’s expense, with or without the oil company’s consent.

(c) the landowner may remove the platform at the landowner’s expense, with or without
the oil company’s consent.

(d) the landowner becomes the owner of the platform.

Answer 10

A. the oil company may remove the platform at the oil company’s expense, with or without the landowner’s consent.

Although there is actually a special accession provision for leases which is testable only in the Code III exam (see La. Civ. Code art. 2695), there is no difference in analysis under the general accession principles. Assuming the oil company received consent from the landowner to erect the platform on the land (which seems to be the case here since that is what a mineral lease is for unless there is a special provision requiring unitization or off-site production), upon the termination of the
oil company’s lease, it owns the buildings and constructions placed thereon, and has the right to remove the structures it has placed there, along with the duty to restore the property to its former condition. [See La. Civ. Code art. 493] Choices B and C describe rules that are not found in the
Code. Choice D is provided for in the Code, but would never occur immediately upon the expiration of the oil and gas lease unless the lease was not properly recorded and the land had been sold during the lease to a third party entitled under the public records doctrine to disregard the unrecorded lease.
[See La. Civ. Code art. 491] Otherwise, the landowner’s right to ownership of the platform would require that two written notices be given to the oil company: the first written notice must demand removal of the platform and restoration of the property to its former condition; and second, if the oil
company does not remove the platform and restore the property within ninety days of the written demand therefrom, the landowner may thereafter appropriate ownership of the platform by providing
an additional written notice by certified mail. When appropriation of ownership of the improvement occurs, the landowner owes nothing for the improvement. [La. Civ. Code art. 493, ¶2]

Question 11

One week before their marriage, Cindy and Pat entered into a premarital agreement. The agreement provided that each of the parties’ earnings during the marriage would remain their separate property, and that neither party would make a claim for any form of spousal or child support in the event of a divorce. It also provided that, if the couple had any children, they would have joint custody in the event of a divorce.

Two years later, Cindy and Pat had a son, John. Cindy filed for divorce when John was three years old. She requested interim and final spousal support, child support, sole custody of John, and half of the amount Pat saved during their three-year marriage. Cindy has not worked for five years.

Pat will be able to assert the premarital agreement as a defense to Cindy’s claims for:

(a) final spousal support.
(b) interim and final spousal support, child support, child custody, and earnings.
(c) final spousal support, child support, child custody, and earnings.
(d) final spousal support and earnings.
(e) Pat will not be able to use the premarital agreement as a defense to Cindy’s claims.

Answer 11

D. final spousal support and earnings.

Before marriage, spouses can enter into a matrimonial agreement as to all matters that are not prohibited by public policy. [La. Civ. Code art. 2329] Spouses are free to enter into a regime of separation of property
under article 2328, and are free to waive final periodic support. [La. Civ. Code art. 116] Answers (B) and (C) are incorrect because agreements of child custody are always subject to modification and child support is
based on the needs of the child as they exist after divorce; therefore, neither can be waived in a premarital agreement. Additionally, Louisiana courts have rejected attempts to waive interim spousal support because it
arises from the obligation spouses owe each other during marriage. Therefore, any waiver is unenforceable as against public policy. [Holliday v. Holliday, 358 So. 2d 618 (La. 1978); Hall v. Hall, 4 So.3d 254 (La. App. 5 Cir. 2/10/09)]

Question 12

A grandparent not granted custody of a child may be granted reasonable visitation rights of the child by proving:

(a) It is in the best interest of the child after a contradictory hearing is held to determine
whether to appoint an attorney for the child.

(b) It is in the best interest of the child after a contradictory hearing is held to determine
whether extraordinary circumstances exist.

(c) It is in the best interest of the child after an ex parte hearing is held to determine
whether to appoint an attorney for the child.

(d) It is in the best interest of the child after an ex parte hearing is held to determine
whether extraordinary circumstances exist.

(e) It is in the best interest of the child, and no hearing is required.

Answer 12

A. It is in the best interest of the child after a contradictory hearing is held to determine
whether to appoint an attorney for the child.

An amendment to the visitation article was passed in 2012, which now permits a grandparent, not granted custody of a child, to be granted reasonable visitation if the court finds it is in the best interest of the child.
[La. Civ. Code art. 136] Before making the determination, the court is required to hold a contradictory hearing to determine whether the court should appoint an attorney to represent the child. Id. Answer (B) is incorrect because “extraordinary circumstances” are no longer required for grandparents seeking visitation, but is required for other relatives seeking visitation of the child. Answers (C) and (D) are incorrect because the hearing must be contradictory and (E) is incorrect because a hearing is required.

Question 13

Jorinda and Rob married in 1990 and had two children. In 2005, Jorinda was diagnosed with a progressive muscle disorder that ultimately rendered her wheelchair bound. By 2009, she was in a vegetative state, and Rob and the children had done everything they could for her.
Jorinda was interdicted and was moved to a 24-hour care facility. Rob moved on with his life and started dating Cathy. In 2012, Rob and Cathy married in Las Vegas while celebrating his 40th birthday. They sought a marriage license under the laws of Nevada and received a marriage certificate there. Upon returning, Rob’s children began to question whether his marriage to Cathy was valid. Which of the following is correct?

(a) Rob and Cathy are in an absolutely null marriage because Rob was still married to
Jorinda when he married Cathy.

(b) Rob and Cathy are in an absolutely null marriage because Rob and Cathy did not
obtain a marriage license in the State of Louisiana.

(c) Rob and Cathy’s marriage is valid because the law permits the spouse of an interdict to remarry two years after a judgment of interdiction without obtaining a divorce.

(d) Rob and Cathy are in a relatively null marriage because Rob was still married to
Jorinda when he married Cathy.

(e) Rob and Cathy are in a relatively null marriage because Rob and Cathy did not obtain a marriage license in the State of Louisiana.

Answer 13

A. Rob and Cathy are in an absolutely null marriage because Rob was still married to
Jorinda when he married Cathy.

A marriage is absolutely null when contracted without a marriage ceremony, by procuration, or in violation of an impediment. [La. Civ. Code art. 94] An impediment to marriage in Louisiana is a prior undissolved marriage. [La. Civ. Code art. 88] (A) is the correct answer because Rob never divorced Jorinda, and was
still married to her when he married Cathy in Nevada. Answer (B) is incorrect because parties can validly marry out of state without obtaining a marriage license in Louisiana. Answer (C) is incorrect because there is no such exception in Louisiana. Answers (D) and (E) are incorrect because a marriage is relatively null when one of the parties lacks consent, which is not present here.

Question 14

Joseph and Nancy want to get married. Joseph is 19 and Nancy is 17. Although Nancy’s parents agree to the marriage, Nancy and her entire family are currently living in Hawaii and Joseph is in Louisiana. Joseph is afraid that Nancy will fall for someone else and insists that they marry immediately. Joseph gets a local Louisiana justice of the peace to perform the marriage ceremony because Nancy’s parents have provided their written consent and Nancy’s best friend Molly has agreed to stand as substitute for Nancy in the ceremony. The marriage between Joseph and Nancy is:

(a) Valid.
(b) Invalid, because a justice of the peace cannot perform a marriage in Louisiana.
(c) Invalid, because Nancy is under 18 years of age.
(d) Invalid, because Louisiana does not recognize marriage by procuration.

Answer 14

D. Invalid, because Louisiana does not recognize marriage by procuration.

Louisiana law provides that parties to a marriage must declare that they take each other as husband and wife in the presence of a third person who is qualified or reasonably believed by the parties to be qualified to perform the ceremony. A marriage may not be contracted by procuration (i.e., a marriage where a prospective spouse appoints a representative as a substitute in the ceremony). Therefore, the marriage is invalid. Answer choice (C) is incorrect because a person under 18 may marry in Louisiana with the written consent of either or both parents. Answer choice (B) is incorrect because a justice of the peace is qualified to perform a marriage ceremony in Louisiana.

Question 15

Questions 15 through 18 are based on the following facts:

Jarvis and Susanna were married in 1979. Because Susanna always had dreamed of having a story-book wedding, they were married at Houmas House Plantation and Gardens in Darrow, Louisiana. The couple lived in Bay St. Louis, Mississippi, for the entire duration of their marriage. In 1997,
Susanna could no longer stand Jarvis’ disgusting lack of personal hygiene and moved to Lancaster, Pennsylvania, to live among the Amish. In January of 1999, Jarvis moved to a new house in Gonzales, Louisiana. Later that year, in September, he resigned himself to the fact that Susanna was not coming back and filed for divorce in the Twenty-Third Judicial District Court of Louisiana, on the grounds of living separate and apart. They had no children, but Susanna had worked for seven years while Jarvis finished his education. Susanna had also taken care of the marital home which allowed Jarvis to start his own business.

5. Jarvis can file for divorce in Louisiana because:
   (a) He resides in Louisiana.
   (b) He is domiciled in Louisiana.
   (c) He was married in Louisiana.
   (d) Louisiana may not hear this action.

Answer 15

B. He is domiciled in Louisiana.

A divorce action can be heard in a Louisiana court because Jarvis was domiciled in the state. Thus, (B) is the correct answer. If only one of the spouses is domiciled in Louisiana, the divorce action can be filed there. If
a spouse has established and maintained a residence in a parish in Louisiana for at least six months, there is a rebuttable presumption that he has a domicile in that parish. The facts indicate that Jarvis moved to Gonzales, Louisiana in January of 1999 and filed the divorce action against Susanna in September of 1999. (A) is incorrect because residence alone will not establish jurisdiction, and (C) is incorrect because marriage in the state alone will not confer jurisdiction in a Louisiana court either.

Question 16

The divorce decree was issued in August 2001. The court awarded Susanna the marital home and $700 per month permanent spousal support. In March 2002, Susanna began seeing Simon.
Because Susanna was very lonely, Simon moved in to Susanna’s home. In August 2002, Jarvis filed a petition to terminate his spousal support obligation to Susanna, arguing that she was living with Simon and she had essentially “remarried.” The court should rule:

(a) To terminate Jarvis’ support obligation because Susanna has cohabited with Simon as though they are married.
(b) That Jarvis will only have to pay $350 a month because Susanna is living with Simon.

(c) That Jarvis must continue to pay $700 if the court finds that he has the ability to pay
that amount.

(d) Jarvis’ support obligation cannot be terminated because Susanna has merely cohabited with Simon.

Answer 16

A. To terminate Jarvis’ support obligation because Susanna has cohabited with Simon as though they are married.

Support payments may be awarded based on the needs of the party requesting it and the ability of the other party to pay. A support award terminates upon death of either party, marriage by the recipient, or a judicial determination that the recipient has cohabited with another person in the manner of married persons. Jarvis would have to petition the court to terminate the support payments.

Question 17

Assume for the purposes of this question that Jarvis stopped paying support to Susanna. The prescriptive period on a claim to enforce payment of the arrears is:

(a) Three years.
(b) Five years.
(c) Ten years.
(d) None of the above.

Answer 17

B. Five years.

Under the Louisiana Code of Civil Procedure, there is a five-year prescriptive period to make executory past due spousal support payments.

Question 18

8. Which of the following is community property?
   (a) 100 shares of General Cinema stock left to Susanna by her mother’s will.
   (b) Jarvis’ Ph.D. from Tulane University.

(c) The dividends from the 100 shares of General Cinema stock left to Susanna by her
mother’s will put into a bank account held jointly by Susanna and Jarvis.

(d) Susanna’s engagement ring.

Answer 18

C. The dividends from the 100 shares of General Cinema stock left to Susanna by her
mother’s will put into a bank account held jointly by Susanna and Jarvis.

Community property is acquired during the existence of the marriage through the effort, skill, or industry of either spouse, property acquired with community things or with community and separate things unless
classified as separate, property donated to the spouses jointly, natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community, and all other property not
classified by law as separate property. Answer choice (A) is not correct because the stock was donated to Susanna alone at the time of her mother’s death. Answer choice (B) is not considered community property
subject to division, and (D) is incorrect because it was acquired by Susanna before the marriage to Jarvis. Answer choice (C) is the correct answer because fruits of separate property are classified as community property unless the acquiring spouse reserves the fruits in an authentic act or act under private signature duly
acknowledged. This declaration must be provided to the other spouse prior to filing of the declaration. We are not told of any declaration of this kind under these facts signed by Susanna, so the fruits of her separate property, the General Cinema shares’ dividends, fall into community property.

Question 19

9. Husband and wife enter into the following contract during the existence of the legal regime: they agree that the husband gets ownership of the house (valued at $90,000), wife gets ownership of her pension (valued at $150,000), and all fruits and revenues of their separate assets will be separate. Which of the following statements is not a legal basis on which to attack the couple’s agreement?
   (a) Assuming the couple confects the agreement as an authentic act or as an act under private signature duly authenticated by both spouses, court approval of the agreement is required.

(b) The reservation of the fruits and revenues of a spouse’s separate property as separate
requires an authentic act, recordation, and notice to the other spouse.

(c) The agreement might be susceptible to an attack based upon lesion, but more facts are
needed to make this determination.

(d) Assuming the couple confects the agreement as an authentic act or as an act under private signature duly authenticated by both spouses, it may be attacked for error,
fraud, or duress.

(e) Choices A, B, C, and D are all legal bases on which to attack the couple’s agreement.

Answer 19

A. Assuming the couple confects the agreement as an authentic act or as an act under private signature duly authenticated by both spouses, court approval of the agreement is required.

Choice A is the correct choice, meaning that Choice A is not a legal basis on which to attack the couple’s agreement.

Court approval is needed during marriage for a matrimonial agreement that modifies or terminates a matrimonial agreement during marriage (unless the couple is opting into the legal regime). [La. Civ. Code art. 2329] A matrimonial agreement is defined in the Code as “a system of principles and rules governing the ownership and management of the property of married persons.” [La. Civ. Code art. 2325] The temporal focus of a matrimonial agreement is property to be acquired in the future.

The only part of the couple’s contract that provides principles and rules governing property to be acquired in the future is the provision in which each spouse reserves the fruits and revenues of separate property as
separate. Since the Code does not require that this be done in a matrimonial agreement, this provision does not convert the contract into an attempted matrimonial agreement.

The provision partitioning the house and the pension is permissible, as spouses are free to voluntarily partition community property during the existence of the legal regime. [See La. Civ. Code art. 2336]

Choice (B) is a legal basis on which to attack the couple’s agreement. All three of the listed requirements — authentic act, recordation, and notice to the other spouse — are required by the Code. [See La. Civ. Code art. 2339]

Choices (C) and (D) are legal bases on which to attack the couple’s agreement. As stated in the explanation of answer choice (A), spouses are free to enter into a voluntary partition during the legal regime. A voluntary partition is a contract, and, like most contracts, it can be attacked for vices of consent, which include error, fraud, and duress. [La. Civ. Code art. 1948] Additionally, an extrajudicial partition (i.e., a voluntary partition such as the one entered into by this couple) may be rescinded for lesion if the value of the part received by a spouse is below three-fourths of the fair market value of the portion he should have received. [La. Civ. Code art. 814]

Looking just at the two assets that were voluntarily partitioned, viz., the house and the wife’s pension, the agreement does not seem to be lesionary. The total value of these two assets is $240,000, so the portion to which each spouse was entitled was $120,000. Three-fourths of $120,000 is $90,000, which is the value of the house allocated to the husband in the voluntary partition. Since an extrajudicial partition may be rescinded for lesion only if a spouse received less than three-fourths of the value that spouse should have received, this voluntary partition is not lesionary if we factor in only the house and the wife’s pension.

The problem is that the agreement also consisted of a provision in which both spouses reserved all fruits and revenues of their separate assets as separate. It could be argued that this provision ought not be considered in the determination of whether the agreement is lesionary, but courts generally require that the calculation for
lesion include not only the community property that is being partitioned, but also any rights of value that are included as part of the agreement.

Even though either spouse unilaterally could have reserved the fruits and revenues of separate property as separate, that is not what happened. Rather, the declarations of paraphernality were part of a voluntary
partition. Thus, more information about the separate property of each spouse is needed to determine the value that should be assigned to each spouse as part of the “portion” received in the partition.

Choice (E) is not the correct choice, since choice (A) is not a legal basis on which to attack the couple’s agreement.

Question 20

Acquisitive prescription of a servitude requires:

(a) That the servitude be apparent.

(b) That the possessor of the servitude have oral or written permission from the owner of
the estate on which it is exercised.

(c) That the possessor of the servitude be in good faith at commencement of the use.
(d) All of the above.
(e) None of the above.

Answer 20

A. That the servitude be apparent.

Answer choice (B) is not correct because if the true owner gave permission then either: a servitude by title has been created (if permission is in writing and satisfies requirements for creation of servitude) or the use is permissive and not adverse (i.e., his use, or possession, is precarious). Answer choice (C) is not correct because we also have 30-year acquisitive prescription for servitudes so good faith is not always required.

Question 21

Al owned two adjoining parcels of land. In 1971, Al sold the western parcel to Ben by a duly recorded Act of Sale that contained the following clause: “Grantee promises for himself, his heirs, successors, and assigns, not to erect a structure over two stories on the land.” In 1972, Ben built a two-story house on the western parcel and lived there for 30 years. In 2002 Ben sold the western parcel to Darla by an Act of Sale that did not contain the structure height restriction. In 2005 Darla tore down the existing house on the western parcel and erected a three-story house. Ed, who purchased the eastern parcel from Al in 2006 by an Act of Sale that did not mention the structure height restriction, recently learned of the structure height restriction clause in Al’s Act of Sale to Ben. Ed has sued Darla to enforce the restriction. Who will prevail?

(a) Darla, because Ben’s Act of Sale to Darla did not contain the structure height restriction clause.

(b) Darla, because neither Al nor Ed brought suit within two years from Darla’s noticeable
violation of the structure height restriction.

(c) Darla, because Al’s Act of Sale to Ed did not contain the structure height restriction
clause so Ed has no right of action to enforce the clause.

(d) Darla, because she had no notice of the structure height restriction clause in the Act of
sale from Al to Ben.

(e) None of the above choices is accurate.

Answer 21

E. None of the above choices is accurate.

Preliminarily, the clause contained in the deed from Al to Ben created a predial servitude. The servient estate is the western parcel (sold to Ben), and the dominant estate is the eastern parcel (sold to Ed). It is a negative servitude. [See La. Civ. Code art. 706] Though the clause never used the terms “servitude,” “dominant estate,” or “servient estate,” there are rules of interpretation that allow such a provision to nonetheless create a servitude. [See La. Civ. Code art. 732] One factor here is that Ben promised “for himself, his heirs, successors, and assigns,” evidencing the party’s intention to create a real obligation (i.e., servitude) on the western parcel, which is the servient estate. The clause does not identify a dominant estate, but the servitude is nonetheless a predial servitude since “the right granted be of a nature to confer an
advantage on an estate.” [See La. Civ. Code art. 733] Being able to control the height of a structure on the western parcel is of greater advantage to the owner of the retained eastern parcel than it would be to Al himself. Hence, the clause created a predial servitude with the eastern parcel as the dominant estate and the western parcel as the servient estate. Because the Al to Ben deed was properly recorded, it is binding on all future owners of both parcels.

Answer choices (A) and (C) are incorrect for the same reason. Since Al’s sale to Ben was properly recorded, the duty is imposed upon Darla’s land (western parcel — servient estate), and the benefit is conferred to Ed’s 
land (eastern parcel — dominant estate). 

Choice (B) is incorrect because the two-year liberative prescription for a noticeable violation of a restriction applies only to building restrictions, which this clause did not create. [See La. Civ. Code arts. 775 and 781]

Choice (D) is incorrect. Louisiana has a pure race public records doctrine. Moreover, as stated in the analysis of answer choices (A) and (C), recordation of the Al to Ben sale had the effect of making the servitude effective against third persons.

Hence, the correct choice is (E). Ed will win. Prescription of non-use commenced in 2005, when Darla violated the servitude. [See La. Civ. Code arts. 753 and 754] So long as Ed brings a suit against Darla
before 2015 he will prevail.

Question 22

Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013.

The following question adds additional
facts:

In 2007 Kim did the following to the residence at 123 Sena Drive: spent $4,000 to replace the old carpet with new wooden floors, and spent $1,000 for a replacement air conditioning compressor. What rights and duties arise from these particular facts?

(a) Kim’s estate must reimburse Robert $5,000 resulting from both of Kim’s expenditures.
(b) Robert must reimburse Kim’s estate $5,000 resulting from both of Kim’s expenditures.

(c) Robert must reimburse Kim’s estate $1,000 resulting from Kim’s expenditure of $1,000
to replace the air conditioning compressor.

(d) Kim’s estate must reimburse Robert $4,000 resulting from Kim’s expenditure of $4,000 to replace the carpet with wooden floors.
(e) No rights and duties arise from these facts.

Answer 22

E. No rights and duties arise from these facts.

As usufructuary, Kim is “responsible for ordinary maintenance and repairs for keeping the property subject to the usufruct in good order, whether the need for these repairs arises from accident or force majeure, the normal use of things, or his fault or neglect.” [See La. Civ. Code art. 577] Since the carpet was old, Kim had the duty to replace it. Since the air compressor broke, she had the duty to replace it. Kim’s estate owes nothing to Robert. Kim’s estate would owe reimbursement to Robert only if replacing the carpet with wooden floors could be considered a breach of her duty to “preserve the substance of the residence” or of her duty to obtain Robert’s consent before making “improvements and alterations on the property.” [See La.
Civ. Code arts. 539 and 558] Replacing old carpet with new wood floors seems most appropriately to be considered ordinary maintenance and repair.

Regarding the air conditioning compressor, Robert would have the duty to reimburse Kim’s estate for the $1,000 she expended only if it were considered an extraordinary repair that did not result from Kim’s fault or
neglect. [See La. Civ. Code art. 577] Here, however, it is not likely that this would be considered an extraordinary repair, since that term is limited to expenditures “for the reconstruction of the whole or of a substantial part of the property subject to the usufruct.” [La. Civ. Code art. 578] Hence, neither Kim’s estate nor Robert owes any amount to the other.

Question 23

Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013.

The following question adds additional
facts:

In 2006 Kim learns that the Camry needs a new engine. She chooses not to replace the engine, and instead trades the car in to the Toyota dealership and buys a 2007 Toyota Avalon, the price of which is $28,000. The dealer assigns a trade-in value of $7,000 to
the Camry. Which of the following statements best describes the rights and duties that result from these facts?

(a) Kim’s estate owes Robert $10,000 because she had no power to dispose of the 2002 Camry since it is a nonconsumable.
(b) Kim’s estate must turn the 2007 Toyota Avalon over to Robert.

(c) Kim’s estate owes Robert the fair market value of the 2002 Camry as of the date the
usufruct terminated.

(d) Kim’s estate owes Robert $7,000.
(e) No rights and duties arise from these facts.

Answer 23

D. Kim’s estate owes Robert $7,000.

Answer choice (D) describes the most likely rights and duties created by these facts.

(A) is not correct. Although ordinarily a usufructuary has no right to dispose of nonconsumables, there is an exception for “corporeal movables that are gradually and substantially impaired by use, wear, or decay, such as equipment, appliances, and vehicles, provided that [the usufructuary] acts as a prudent administrator.”
[La. Civ. Code art. 568] Given that the car needed a new engine, which would be considered an extraordinary repair for which Robert would ultimately be responsible, it seems prudent for Kim to get rid of the car.

(B) is probably not correct, though I “waffle” here because the language of the 2010 amendments to usufruct
is not totally clear on this point. The Code states: “If a thing subject to the usufruct is otherwise alienated by the usufructuary, the usufruct attaches to any money or other property received by the usufructuary.” [La.
Civ. Code art. 568.1] If the “trade-in” is viewed as an exchange, then Choice B would be correct. However, given that the Avalon is worth four times more than the Camry, it would be absurd to require Kim’s estate to hand the Avalon over to Robert. It makes more sense to view the “trade-in” as a sale, which makes answer choice (B) incorrect (and makes choice (D) correct).

Choice (C) is not correct. If a nonconsumable has been lost or deteriorated through the fault of the
usufructuary, the Code does require a usufructuary to pay the naked owner the value the property would have had at termination. [La. Civ. Code art. 628] Here, however, Kim had the right to dispose of the Camry, so article 628 does not apply.

(D) is the best choice. As explained earlier in the context of choice (B), the ambiguity in article 568.1 militates in favor of considering the “trade-in” as a sale of the Camry for $7,000. Hence, through real subrogation the usufruct attaches to the money, a consumable. At the termination of the usufruct, Kim’s estate must reimburse Robert $7,000.

Question 24

Norma Jean died in 2004, survived by her sister Kim and her brother Robert. Norma Jean’s will bequeathed her entire estate to Robert subject to a usufruct in favor of Kim. Norma owned the following property at her death: a residence in Jefferson Parish (123 Sena Drive) (valued at $250,000 at her death), a car (2002 Toyota Camry) (valued at $10,000 at her death), and 100 acres of farmland in Tangipahoa Parish. Kim died on March 31, 2013.

The following question adds additional facts:

On January 1, 2010, Kim leased the farmland to Barney for a five-year term at an annual rental of $2,400, due on the last calendar day of the year. Barney paid the 2010, 2011, and 2012 rentals to Kim. Which of the following statements is not accurate?

(a) Kim’s estate owes no reimbursement to Robert for the 2010, 2011, and 2012 rentals
Barney paid to Kim.

(b) Robert is not bound by the lease, and can evict Barney.

(c) If Robert assumes the lease, then on December 31, 2013, when Barney pays Robert
$2,400, he will owe Kim’s estate $600.

(d) Barney has a claim against Kim’s estate if he was unaware that she was a mere
usufructuary.

(e) Choices A, B, C, and D are all accurate.

Answer 24

E. Choices A, B, C, and D are all accurate.
Choice (E) is the correct answer. The other answer choices are all accurate.

Answer choice (A) is accurate. A usufructuary of a nonconsumable has the element of fructus. All fruits accruing during the usufruct belong to the usufructuary with no duty to account. [La. Civ. Code art. 550]

Choice (B) is accurate. “The usufructuary may lease, alienate, or encumber his right. All such contracts cease of right at the end of the usufruct.” [La. Civ. Code art. 567] Thus, Robert is not bound by the lease
and may evict Barney.

(C) is accurate. If Robert assumes the lease, and takes Kim’s place as lessor, then he must pay her estate for any fruits that accrued during the period of her usufruct. Civil fruits accrue day by day, regardless of when they are paid. [La. Civ. Code art. 556] The usufruct was in existence for three months (one-fourth of 2013). Thus if Robert assumes the lease, he must pay Kim’s estate one-fourth of $2,400, which is $600.

Lastly, answer choice (D) is accurate. If Barney knew Kim was a usufructuary, he impliedly agreed to the resolutory condition of termination of the lease by her death within the five-year term. If Barney did not
know Kim was a usufructuary, she breached her duties under the contract and her estate is liable to Barney. [See La. Civ. Code art. 2716]

Question 25

Prior to his marriage to Sally, Nick became managing partner of Northern, Northern & Beans, a partnership. On the day of their marriage, Nick’s partnership interest was valued at $50,000. During the five years of his marriage to Sally, Nick’s partnership prospered, owing chiefly to Nick’s hard work. At the termination of Nick and Sally’s legal regime, Nick’s partnership interest was worth $150,000. You represent Sally in the partition proceeding. Which statement best describes the parties’ rights and duties in this situation?

(a) Sally has no rights arising from the partnership interest as it was acquired prior to the marriage and is thus Nick’s separate property.

(b) Sally owns an undivided one-half interest in the partnership interest because it was
transmuted into community property through commingling.

(c) Sally has no rights arising from the partnership interest because a spouse who is a partner has the exclusive right to the partnership interest.

(d) The partnership interest is community property, but at termination of the regime Sally
owes Nick $25,000 (one-half of its value at commencement of the community property
regime).

(e) Although the partnership interest is Nick’s separate property, additional facts are
needed to determine whether he owes Sally reimbursement.

Answer 25

E. Although the partnership interest is Nick’s separate property, additional facts are
needed to determine whether he owes Sally reimbursement.

Choice (A) is only partially correct. The partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 2341] Nevertheless, a spouse whose separate property has benefited from the infusion of community funds or community labor may owe reimbursement at the termination of the regime. [La. Civ. Code arts. 2364, 2366, and 2368] The hypothetical contains facts that suggest that reimbursement by Nick to Sally may be owed. See the discussion of answer choice (E), infra.

(B) is incorrect. The partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 2341] Since a partnership is a juridical person, it remains Nick’s separate property. Had the partnership been converted into another form of juridical person, and had Nick contributed community funds in the conversion, then the principle of commingling would apply, and the new juridical person would be classified as community if the community amount he contributed was not inconsequential
as compared to the value of this interest in his separate property (the partnership interest). [See La. Civ. Code arts. 2338 and 2341] Since this did not occur, the partnership interest remains Nick’s separate
property.

Choice (C) is incorrect. It states a portion of the legal regime’s management rule applicable to a partnership interest when that interest is community property. [La. Civ. Code art. 2352] When a partnership interest is a spouse’s separate property, the legal regime’s management rules are inapplicable, since the partnership interest is Nick’s separate property.

Answer choice (D) is also incorrect.  Sally would owe reimbursement to Nick if the partnership interest had been transmuted into community property (unless the transmutation resulted from a donation, La. Civ. Code art. 2343.1), but as stated in the discussion of choices (A) and (B), the partnership interest is Nick’s separate 
property. 

(E) is the correct answer. As previously stated, the partnership interest was acquired prior to the marriage and thus it is Nick’s separate property. [See La. Civ. Code art. 2341] Nevertheless, the facts state that the value of Nick’s partnership interest has grown from $50,000 (at the inception of the marriage) to $150,000 (at the termination of the legal regime).