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Louisiana Bar Exam > Code I > Flashcards

Code I Flashcards

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1
Q

CONSENT DECREE MODIFICATION

A

Need only prove

  1. Material change in circumstances
  2. Proposed modification is in the BIOTCH
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2
Q

PETITORY ACTIONS

A

Pl. seeks judgment declaring that he is owner of the property.Pl. is NOT in possession AND

D. Is in possession + claims ownershipPl. must prove title is good against the world

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3
Q

POSSESSORY ACTION

A

Pl. is in possession, but is being disturbedPl. has burden of proving

  1. Quiet uninterrupted possession for more than 1 year
  2. Disturbance in law and fact, and
  3. Action instituted w/in one year of disturbance
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5
Q

ART. 466TEST FOR COMPONENT PARTS

A
  1. Complete building of the same general type w/out regard to specific use
  2. Things that are attached to a construction other than a building and that serve its principal use are its component parts.
  3. Other things if they are attached to such a degree that they cannot be removed without substantial damage
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6
Q

DEIMMOBILIZATION

A

Component part that may be detached and removed becomes a movable.Immovable is converted into a moveable if deimmobilized

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7
Q

SUBSTANTIAL ALTERATIONS TO A CO-OWNED THING

A

Requires consent of all co-owners, but may be acceptable if in accordance with the destination of the thing. If so, co-owners may keep the improvement and pay the costs or increased value

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8
Q

CO-OWNER WHO MAKES IMPROVEMENTS NOT CONSISTENT W/ USE OF PROPERTY + W/OUT CONSENT

A

Co-owners may

  1. Demand their removal at expense of owner
  2. Keep and pay, current value of materials or enhanced value of immovable
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9
Q

USE AND MANAGEMENT OF A CO-OWNED THING

A

Any co-owner may use and manage, but must be

  1. According to agreement, or
  2. Where no agreement,
    a. According to destination
    b. by court order
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10
Q

EXCLUDING PARTITION OF A CO-OWNED THING

A

No one may be compelled to own an immovable in indivision indefinitely. By agreement, no longer than 15 years. If longer than 15 years, it will be decreased to 15.

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11
Q

CONSTRUCTION BY GF POSSESSORS

A

Owner of immovable must pay (1 of 3

  1. Cost of materials and workmanship
  2. Current value
  3. Enhanced value
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12
Q

CONSTRUCTIONS BY BF POSSESSOR

A

Owner of the immovable may

  1. Demand demolition and removal
  2. Keep and pay current or enhanced value
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13
Q

RIGHTS/DUTIES OF CO-OWNERS

A
  • Share fruits and products- producer is entitled to deduct costs- presumed equal
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14
Q

FRUITS

A

Things derived from another thing without diminution of its substance. May be natural or civil

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15
Q

MODES OF PARTITION OF A CO-OWNED THING

A
  1. Voluntary
  2. Judicial
    a. In kind - divided into nearly equal parts
    b. partition by licitation
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16
Q

PRODUCTS

A

result in diminution of the thing and cannot be replaced

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17
Q

PERSONAL SERVITUDE

A

Charge of a thing for the benefit of a person, his heirs or assigns
Ex. Right of use, usufruct, habitation

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18
Q

RIGHT OF PASSAGE(Enclosed estate)LEGAL, PREDIAL SERVITUDE

A

Owner may claim a right of passage to nearest public road - must indemnify neighbor

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19
Q

PREDIAL SERVITUDE

A

Charge on a servient estate for the benefit of a dominant estate.

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20
Q

CONVENTIONAL (predial) SERVITUDES BY TITLE

A
  • must be in writing- filed in proper place- person granting must have had power to do so.
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21
Q

NON-APPARENT CONVENTIONAL PREDIAL SERVITUDE

A

No exterior signs or designation

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22
Q

Co-owner right to reimbursement of expenses

A

Entitled to reimbursement for

  1. necessary expenses
  2. Ordinary maintenance & repairs

May deduct exclusive enjoyment by other co-owner

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23
Q

APPARENT CONVENTIONAL PREDIAL SERVITUDE

A

Perceivable by exterior worksCan be acquired by AP

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24
Q

AFFIRMATIVE CONVENTIONAL PREDIAL SERVITUDE

A

Gives the owner of the dominant estate the right to do something
RX BEGINS WHEN CREATED

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25
Q

CONEVENTIONAL PREDIAL SERVITUDES BY AP

A

Only applies to apparent SERVITUDES

Reg. AP rules apply

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26
Q

USUFRUCT OVER CONSUMABLES

A

Usufructuary may alienate, encumber or consume but owes an accounting of thing to NO at end of usufruct.

  1. Must pay value of thing or
  2. Replace with same quality or kind of thing
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27
Q

USUFRUCT OVER NON-CONSUMABLE

A
  1. Use the thing as a prudent administrator
  2. Get fruits that accrue during usufruct - must preserve substance- use as prudent administrator- deliver to NO at end of usufruct
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28
Q

NEGATIVE CONVENTIONAL PREDIAL SERVITUDE

A

RESTRICTS OWNER OF SERVIENT ESTATE FROM DOING SOMETHINGRX BEGINS TO RUN WHEN VIOLATED

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29
Q

BOTTOMS OF NAVIGABLE WATER BODIES

A

State owns to high water mark

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30
Q

NAVIGABLE RIVERS AND STREAMS

A

State owns to low water mark

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31
Q

LEGAL SERVITUDE

A

Limitations on owners established by law for benefit of general public
Ex. Keeping buildings in repair, not building outside land, fixing rain drip, right of passage

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32
Q

USUFRUCT

A

Real right of limited duration on the property of anotherUsus and fructus (use and enjoyment) but not abusus (resides with NO)

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33
Q

RIGHT OF USE

A

Personal servitude conferred on a person -natural or juridical

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34
Q

Duty to pay periodic charges (ex. Taxes)

A

Usufruct is responsible for all annual charges and periodic charges imposed during the existence of e usufruct

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35
Q

INCORPOREAL IMMOVABLES

A

Rights and Actions that apply to immovable things

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36
Q

PERSONAL RIGHT (ACTION)

A

The legal power that a person (obligee) has to demand from another person (obligor)

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37
Q

REAL RIGHT

A
  • Proprietary interest - Dismemberment of ownership- Attach to movables and Immovables
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38
Q

TYPES OF PARTITION

A
  1. Voluntary
  2. In kind
  3. Licitation
39
Q

PARTITION IN KIND

A

Thing held in indivision is susceptible of division in lots of nearly equal value as long as aggregate value of lots are not significantly lower than property as a whole

40
Q

DUTY TO MAKE REPAIRS (usufruct)

A
  1. Usufructuary - ordinary repairs - NO can compel him to make ordinary repairs or repairs due to usufructuary’s fault
  2. NO - extraordinary repairs (reconstruction of a whole or substantial part of property) - usufructuary can make and get reimburse
41
Q

POSSESSION

A
  1. Animus - intent to possess (presumed) AND

2. Corpus - physical possession

42
Q

DUTIES OF USUFRUCTUARY

A
  1. Make inventory
  2. Give security
  3. Use property as prudent administrator
  4. Make ordinary repairs
  5. Pay periodic and annual charges
43
Q

PARTITION BY LICITATION

A

Judicial sale of property - proceeds are distributed to the co-owners

44
Q

RIGHT OF USE

A

Personal servitude that confers a specified use of an estate less than full enjoyment - established in favor of a person- Transferable and heritable

45
Q

Occupancy

A

Taking of possession of a corporeal thing that doesn’t belong to anyone

46
Q

JUST TITLE

A

A juridical act sufficient to transfer ownership or another real right.

47
Q

DECLARATION OF PARAPHERNALITY

A

Reserve fruits of separate property as separate- must serve copy on spouse- record parish of situs if immovable- record parish of domicile if movable

48
Q

ADULTERY BASED DIVORCE

A
  • No physical separation required- adultery must be proved by specific corroborative proof
  • evidence must lead fairly and necessarily to the conclusion that adultery has been committed.
49
Q

103.1 no fault divorce - separation before filing

A

Already living separate and apart for requisite period before petition filed.

  1. File petition w/ affidavit stating that parties lived apart for requisite time period
  2. Wait 15 days for answer (may be waived)
  3. Preliminary default
  4. Confirm divorce two days later
50
Q

PUTATIVE MARRIAGE

A
  1. Absolutely null marriage
  2. At least one spouse in good faith
  3. Has civil effect until declaration of nullity or remarriage of innocent spouse
51
Q

What is a building

A

Not defined in code. Look to the following:

  1. Inhabited by people
  2. Cost
  3. Permanence
  4. Prevailing notions of what constitutes a building.
52
Q

ART. 102 NO FAULT SEPARATION AFTER SERVICE

A
  1. File petition alleging jdx and venue and serve on spouse
  2. separate for 180/365 days
  3. file rule to show cause with verified affidavits showing separation, service of petition on spouse
  4. file a second affidavit showing that parties have remained separated, service on spouse, and petitioner’s desire to be divorced.
53
Q

MARRIAGE

A
  1. Absence of legal impediments such as existing marriage, same sex marriage, or incest
  2. Ceremony presided over by a qualified celebrant w/ two witnesses over 18 years of age in which both parties are physically present.
  3. Mutually expressed consent
54
Q

FELONY CONVICTION DIVORCE

A

Physical separate not required if spouse convicted of a felony and sentenced to death or hard labor

55
Q

TYPES OF TUTORSHIP

A
  1. Natural
  2. By will
  3. Legal
  4. Dative
56
Q

FINAL SPOUSAL SUPPORT

A 
Based on needs of claimant spouse and ability of other spouse to pay. Factors: TAFCRIED
TAXES, 
AGE AND HEALTH, 
FINANCIAL OBLIGATIONS, 
CUSTODY, 
REHABILITATION, 
INCOME, 
EARNING CAPACITY, AND 
DURATION OF MARRIAGE
57
Q

BIOTCH FACTORS

A
  1. Emotional ties
  2. Ability to nurture
  3. Ability to provide
  4. Prior relationship
  5. Stability
  6. Moral fitness
  7. Health
  8. History
  9. Reasonable preferences of child
  10. Cooperation between the parties
  11. Location/distance between parties
  12. Past caregiver
58
Q

JURIDICAL PERSON

A

An entity to which the law attributes personality.

59
Q

Absolutely null marriage

A
  • void from inception- violation of any impediment to marriage - no civil effects
60
Q

Things sometimes movable, sometimes immovable

A

GENERALLY:unity of ownership = immovable; no unity = movable

  1. OCPA
  2. Unharvested crops & ungathered fruits
  3. Component parts
  4. Immovable by declaration
61
Q

Relatively null marriage

A
  • Lacking consent (can be confirmed)- valid until declared null- produces civil effects until declared null
62
Q

IMMOVABLES BY DECLARATION

A
  1. Unity of ownership
  2. Not a home
  3. Component part must be placed on immovable for its service and improvement
  4. Filed for registry in conveyance records in parish where immovable is located
63
Q

Extinction of conventional servitude

A
  1. Rx of non-use
  2. Confusion
  3. Destruction of either estate
  4. Abandonment
  5. Renunciation
  6. Expired term
  7. Dissolution of right
64
Q

MOVABLES BY ANTICIPATION

A

Separate ownership or encumbrance of I harvested crops or ungathered fruits

65
Q

AP OF Immovables

A

10 years - good faith, just title & thing susceptible of AP30 years - bad faith & thing susceptible of AP

66
Q

CHANGE OF CUSTODY IN A CONSIDERED DECREE

A
  1. the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, OR
  2. harm likely to be caused by a change in environment is substantially outweighed by its advantages to the child
67
Q

ALWAYS IMMOVABLE

A
  1. Tracts of land and their component parts
  2. Buildings
  3. Standing timber
68
Q

Presumption of paternity

A

Child born of marriage, or W/in 300 days of end of marriage
Rebutted by disavowal or contestation action by clear and convincing evidence
Rx - 1 year after actual or constructive notice of birth or if sep and apart - notification in writing

69
Q

Contestation & establishment action by mother

A

Establish

  1. Former husband is not father and
  2. Present husband is father

Prove by C&C evidenceTime limit: 180 days marriage to present husband or two years from birth of child

70
Q

AP OF MOVABLES

A

3 years - GF and just title10 years - BF

71
Q

Subsequent marriage and acknowledgment

A

Acknowledge child by authentic act or signs birth certificateChild cannot be filiated to another man

72
Q

What are building restrictions?

A

charges imposed by the owner(s) of immovable property pursuant to a general plan that governs building standards, specified uses, and improvements that are:

  1. feasible, and
  2. capable of being preserved.
73
Q

Child’s paternity action

A

Living parent - preponderanceDead parent - C&C Must file w/in 1 year of parents death

74
Q

Matrimonial agreements

A
  1. Before marriage may be freely contracted

2. After marriage requires review by the court

75
Q

Removal of curator

A 
good cause shown that it is in the best interests of interdict.
Look to the following:  MRGOIA
1.misapplication or mismanagement of property.
2. Failure to render an account
3. Gross negligence
4. Failure to obey court order
5. Incapable of performing duties
6. Abuse, failure to educate, etc.
76
Q

Qualificications of tutor

A
  1. Major
  2. Not infirm mentally or physically
  3. Not of bad moral character
  4. Not indebted to minor
  5. Not a felon
77
Q

Steps to become curator

A
  1. Take oath
  2. Furnish security or legal mortgage sufficient to cover minor’s property
  3. Clerk issue letters of tutorship
78
Q

What is community property

A

The legal regime of the community of acquets and gains

79
Q

Curator

A

person appointed by the court to manage the interdict’s affairs; represents the interdict in juridical acts, care for the person or his affairs.

Obligated to do the following:

  1. exercise reasonable care, diligence and prudence, and
  2. to act in the best interest of the interdict
80
Q

limited interdiction

A

a person who, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person OR managing his estate

81
Q

full interdiction

A

a person who, due to an infirmity, is unable to consistently make reasoned decisions regarding the care of his person AND his property

82
Q

Child Support

A

income shares model:
each parents gross income - preexisting support payments to another child or spouse who is not a party to the proceedings = adjusted gross income;
use adjusted gross income to determine the basic child support obligation from the statutory tables + health insurance, net childcare costs, extraordinary medical expenses and other extraordinary expenses (like private school tuition).

Each party’s obligation is based on the percentage of the adjusted gross monthly income. The Court may modify the obligation in the best interests of the child.

83
Q

UCCJEA jurisdiction to modify

A

La. has initial jurisdiction and no other court has continuing jurisdiction or the other state court determines that the parties do not reside in the other state.

84
Q

UCCJEA continuing jurisdiction

A

court that makes an initial determination of custody has exclusive continuing jurisdiction until neither the child nor the parents continue to reside in this state or the child no longer has a significant connection with this state and substantial evidence is no longer available.

85
Q

UCCJEA initial determination

A

La. must be the child’s home state (lived w/ parent for 6 months before the proceeding commenced) or was the child’s home state w/in the preceding 6 months or the preceding 12 months and the child left because of an emergency or natural disaster.

if no home state or home state declined, La. has jurisdiction if the child and at least one parent have a significant connection with La. and there is substantial evidence available in La.

86
Q

Contributions to Earning Capacity of a Spouse

A
  1. claimant contributed to the other spouse’s training or education during the marriage that increased the other spouse’s earning power, and
  2. the claimant did not benefit from the increased earning power during the marriage

Liberative Rx of 3 years from signing divorce judgment

87
Q

interim spousal support

A

may be awarded based on

  1. the needs of the claimant spouse, and
  2. the ability of the other spouse to pay

The purpose of this is to maintain the standard of living of the parties during the marriage

fault of the claimant spouse is irrelevant.

88
Q

Immovable things

A

Always immovable

  1. land
    a. component parts of land
    a. i. buildings, standing timber, ungathered crops (only when owned by owner of ground.
  2. Buildings
    a. Separate ownership – separate immovable
    b. Unity of ownership – component of land
  3. timber, while uncut
    a. separate ownership – separate immovable
    b. unity of ownership – component of land
    c. severed - movable
89
Q

Sometimes movable, sometimes immovable

A
  1. other constructions permanently attached to ground
    a. separate ownership – movable
    b. unity of ownership – component part of land
  2. unharvested crops
    a. separate ownership – movable
    b. unity of ownership – component part of land
90
Q

Enforcing building restrictions

A

Who

  1. any landowner affected by the violation has right to enforce
  2. reciprocity implicit in building restrictions - likened to predial servitudes

Remedy

  1. injunction, mandatory and prohibitory
  2. damages, where applicable
91
Q

Temporary and preliminary interdiction granted when:

A
  1. Substantial grounds exist for interdiction and

2. Substantial harm to health, safety, and interdicts property is imminent

Louisiana Bar Exam (10 decks)

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