CODE I Flashcards
means by which a private road becomes public
- Formal Dedication: occurs where there is a valid donation (either MC or IV); need a written juridical act, showing of clear intent to dedicate; and public acceptance.
- Statutory Dedication: whenever there’s essential compliance w/ statue, which requires (a) recordation of plat/map describing streets, etc.; and (b) demonstrates clear intent to dedicate streets to pub use (most common)
- Tacit Dedication: where the gov’t maintains a road for (a) more than 3 years and (b) owner’s actual or constructive knowledge.
- Implied Dedication: (kind of the catch-all) CL doctrine recognized by LA; requires (a) owner’s plain intent to dedicate to public; and (b) public’s clear intent to accept
four factors which will help determine whether a thing is a building or some lesser “other construction”
Key Features of Buildings:
- Whether it is or is to be inhabited by people
- Cost (relatively greater than a tent)
- Permanence (temporal; degree of integration into the soil; is it hard to move?); and
- Prevailing notions of what constitutes a building
If there’s unity of ownership b/t owner of bldng and the land on which it sits
it will be a component part of the land, and thus an immovable.
if the owner of the building is different than the landowner on which it sits, then the building is
a separate immovable
in determining whether an object is a movable or a component part of a tract of land, consider the following:
- Size of the structure
- Degree of its integration and attachment to the soil
- Degree of permanency
if there’s unity of ownership of the other construction and the landowner,
it will be a component part, and thus an immovable.
If there is no unity of ownership, the other construction will be
considered a movable.
Standing Timber is thought to mean
trees, which if cut, produce lumber for building or manufacturing process.
Unity of Ownership: renders the standing timber
a component part of the land and this an immovable.
No Unity of Ownership renders the standing timber
a separate immovable
Integral Parts of land, building, or other constructions:
Thing that is incorporated into a tract of land, building or other construction in such a way as to be come an integral part of the thing to which it’s incorporated is a component part of that thing
things that are attached to a building and that
according to prevailing usages, serve to complete a building of the same general type, w/o regard to its specific use, are its component parts.
Requirements: to be considered a component part of a building
- Physical attachment must be substantial (lesser std than par 3, but more than ephemeral attachment)
- Serve to complete: not necessarily in the sense that its addition will classify it as a building (e.g. a finished house w/ gutters added later—was complete, now it’s more complete)
- Same general type (industrial, commercial, residential)
- Prevailing Usages: practice that’s been long repeated; standard practice or common understanding.
Things that are attached to a construction other than a building that
serve its principle use are component parts.
Requirements: to be considered a component part of construction other than a building, the thing must:
- Physical attachment: same std as paragraph 1
- Serve its principle use: must be some purpose to general functioning of the other construction to which it’s attached (i.e. water tower example)
Other things are component parts of a building or other construction if they are
attached to such a degree that they cannot be removed without substantial change to themselves or to the building or construction.
some physical attachment to the building and other construction that is more than significant.
Ownership Distinguished: full ownership consists of all three
- Usus the right to use and enjoy property
- Fructus: the right to fruits and products
- Abuses: the right to alienate and encumber
Naked Ownership: only right to
alienate and encumber (abusus)
Usufruct: only right to
use and enjoy and rights to fruits and products (usus and fructus)
Servitudes:
rights in things less than full ownership
Predial Servitudes
charge on a servient estate for the benefit of a dominant estate (natural, conventional, and legal)
Personal Servitudes
charge on a thing for the benefit of a person (usufruct, habitation, and right of use)
Bldngs, OCPA, and plantings made on the land of another by a lessee, co-owner, purchaser under a K to sell, or a precarious possessor
- Made w/ owner’s consent:
- belong to he who made them
- Can remove but must restore to former condition
- If not removed w/in 90 days of demand by owner, he acquires ownership after 2nd demand
- No right of reimbursement if he takes ownership
Bldngs, OCPA, and plantings made on the land of another by a lessee, co-owner, purchaser under a K to sell, or a precarious possessor
- Made w/o owner’s consent
belong to the owner of the ground (whether gf/bf possessor).
- Owner can’t force removal
- No right of reimbursement
Claims a/g 3rd Parties: to assert ownership must prove
[1] original owner’s consent and [2] filed for registry in conveyance records.
Things incorporated into an immovable, so as to become its component parts belong to the owner of the immovable.
w/ owner’s Consent:
- Owner of immovable owns component part
- Maker can remove; must restore property
- If not removed after Owner’s demand he can either:
1) Have them removed at maker’s expense; or
2) Keep and pay (value of materials and labor, or enhanced value)
Things incorporated into an immovable, so as to become its component parts belong to the owner of the immovable.
w/o owner’s consent:
- Owner owns component parts
- No rule of removal
- No Rule reimbursement
when owner of an imvbl makes on it plantings, constructions, or works w/ another’s materials
- Landowner owns them (regardless of GF/BF)
- Must reimburse owner of materials for current value and repair any injury caused to him.
Co-Ownership
ownership of the same thing by 2+ persons is “ownership indivision.”
Co-ownership terminates upon:
- Loss or total destruction of thing
- Judicial Act
- Partition
Partition of Co-Owned Property: can limit partition,
at any time, for up to 15 years (all consent of co-owners)
Effect of Partition on Real Rights:
a real right burdening the thing is not affected by partition
Subst’l Alterations & Improvements by Co-Owners
requires consent of all
If Subst’l Alterations & Improvements by Co-Owners made w/o consent of other co-owners
o If consistent w/ use of property
others bound to keep and pay improver either cost, current value, or enhanced value
If Subst’l Alterations & Improvements by Co-Owners made w/o consent of other co-owners
o Inconsistent:
other co-owners can either (a) demand removal; or (b) keep and pay either current value or enhanced value.
Individual Co-owner may transfer
only his share
ALL co-owners must consent to
alienate, lease, or encumber entire thing.
voluntary partition can be rescinded if
value of the part received by co-owner ≤ ¼ Fair mkt value
Voluntary Partition
all co-owners must agree on mode, or in absence of agreement, co-owner may demand judicial partition.
Judicial Partition: 2 types
- Partition in Kind: only if thing can be divided in nearly equal value and total value of individual lots not sig < value of entire property.
- Partition Licitation: when can’t be divided, sold at public auction or private sale and proceeds dist to co-owners.
Predial Servitude
charge on a servient estate for the benefit of a dominant estate (incorporeal immovable)
3 Types of predial servitudes
- Natural: arise from natural situation (drainage)
- Legal: imitations on ownership imposed by law for benefit of gen public/particular persons (keeping bldngs in repair)
- Conventional: established by juridical act, Rx, etc.
Gratuitous Right of Passage
when land is partitioned or voluntarily alienated, and a lot becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised (i.e. when a seller encloses his buyer)
- Does not have to be shortest route
- Act of alienation/partition does not have to mention the servitude of passage
Right of Passage for Indemnity
an owner of an enclosed estate that has no access to a public road can claim right of passage in exchange for indemnity over neighboring property to nearest public road.
- Ltd to kind of traffic & utility that’s reas necessary to use the enclosed estate.
- Dominant estate can construct a road, utility, or RR reasonably necessary.
o Utility includes electricity, water, sewer, gas, phone lines
- Location = shortest route to pub road + least injurious to servient.
o Servient (≠ dominant) can relocate at own expense if same facility afforded to dom.
No Right of Passage
where a landowner encloses himself by voluntary alienation of a portion of his property, neither the owner, nor his successors [universal] have the right of passage.
Types of Conventional Servitudes:
- Affirmative (dominant estate gets right to do something, i.e. right of passage) or Negative (servient estate restricted from doing something, i.e. height restrictions).
- Apparent (perceivable by exterior works, a road), or Nonapparent (no exterior signs, underground pipes or height restrictions)
Ways to Establish Conventional Servitudes:
- By Title
- By Destination of the Owner
- By Prescription
Conventional Servitudes By Title
any act sufficient to transfer immovables sufficient (authentic act for gratuitous and also onerous plus act under private sig w/o acknwlg)
Conventional Servitudes By Destination of the Owner
apparent conventional servitude born when one owner ceases to own two parcels only applies to apparent (common owner’s intent evidenced by exterior signs); not applicable is express provision to contrary.
Conventional Servitudes By Prescription
apparent servitude can be acquired by AP or either 10 yrs (GF + just title) or 30 yrs (no GF or just title)
o Apparent: can be created by all 3 means
o Non-Apparent: only by title; and destination of the owner only if owner filed formal declaration for registry est. destination)
Building restrictions are
are charges imposed by owner of imvbl pursuant to gen plan that
building restriction requirements
- General plan governing bldng stds, specified uses, or improvements
- Plan is feasible; and
- Capable of being preserved
how building restrictions are created
- Owner of an IMVB (sub-developer) over all plots thereafter subdivided; or
- By mutual consent of all owners of IM property that would be affected
Amending building restrictions
- As provided in the act of creation (may lessen or increase)
- If act is silent default rule apply depending on the length of time the building restriction has been in place.
a. >10 yrs: unanimous
b. 10 + yrs: 2/3
c. 15+ yrs: ½
Termination of building restrictions:
(1) Abandonment:
- Abandonment of whole plan: a great number of violations of a number of the restrictions therein the general plan.
- Abandonment of a particular restriction: multiple violations of particular restriction
(2) Liberative Rx: Liberative Rx of 2 years from the date of the noticeable violation
- After the lapse of that time period, the lot on which the violation occurred is freed of the restriction that has been violated (and only that restriction).
- Still subject to the other restrictions.
Remedies for building restrictions :
all landowners who are subject to the restriction can enforce it a/g any violator
- Mandatory Injunctions
- Prohibitory injunctions
- Homeowner’s association can sue to enforce
Contestation Action
Burden: Clear and Convincing evidence and corroborated evidence/testimony that:
- H1 is not Father
- H2 is father
- H2 acknowledged by authentic act/signed BC
Contestation Action
Time Limit:
action must be brought by mom:
- w/in 180 days from termination of marriage from H1 and
- w/in 2 years of child’s birth.
