LA BAR EXAM CODE I: LOUISIANA PROPERTY

Question 1

I. How is property classified?

Answer 1

Things are divided into three main classifications: (i) [PCP] common, public, and private; (ii) corporeals and incorporeals; (iii) and movables & immovables.

Question 2

What is a common thing?

Answer 2

Common things may not be owned by anyone (e.g., air and high seas).

Question 3

What is a public thing?

Answer 3

Public things are owned by either the state or its political subdivisions in its public capacity. Use of public things is open to all, but restricted.

Question 4

What is a private thing?

Answer 4

Things not owned by the state or political subdivision in its capacity as a public person are private things. Simply, private things are things owned by private individuals.

Question 5

What is a corporeal?

Answer 5

Corporeals are things that have a body and can be felt or touched. Corporeal movables are things that have a body and can be moved from place to place.

Question 6

What is an incorporeal?

Answer 6

Incorporeals are things with no body that are comprehended solely by the understanding (e.g., rights of inheritance, servitudes, obligations, property actions.).

Question 7

Before addressing movables and immovables, why are component parts relevant in this discussion?

Answer 7

In Louisiana, the concept of a component part (essentially a “fixture” at common law) is a very important aspect of classification of movables and immovables. A component part is a thing that is so closely connected to another thing that it takes its classification from that other thing to which it is connected, physically or otherwise.

Question 8

What is an immovable?

Answer 8

Things are divided into movables and immovables.
Tracts of land and their component parts, buildings (often hard to distinguish from an OCPA), standing timber, integral parts, and permanent attachments are always classified as immovables.

Question 9

What is a building?

Answer 9

Whether a structure is a building is determined by looking at a variety of factors, including whether it is to be inhabited by people, its cost, its permanence, and prevailing notions of what constitutes a building.

Question 10

What is important to know about buildings?

Answer 10

If the building owner and the land owner are the same, the building is a component part of the land. If there is no unity of ownership, the building is still an immovable but is owned by someone else.

Question 11

What are permanent attachments?

How does the analysis differ as between buildings or other constructions permanently attached to the ground?

aka component parts

Answer 11

Regarding OCPA’s, permanent attachments are: (i) things that serve the principal use of an other construction (e.g., antenna to a cell tower), (ii) things that cannot be removed without substantial damage.

Regarding buildings, permanent attachments are proved by (i) whether the part is integral (building materials like metal); (ii) whether the part completes the building without regard to its specific use (i.e., roof); (iii) whether the removal of the part would cause substantial damage to the building.

Question 12

What is a movable?

Answer 12

Things are divided into movables and immovables. Anything that is not immovable is movable.

Question 13

What are things that are sometimes movable and sometimes immovable?

Answer 13

Things with this designation are other constructions permanently attached to the ground [OCPA]. An OCPA can be either movable or immovable, depending upon whether the other construction is owned by the owner of the ground – if so, it is immovable. If not, it is classified as movable.

Question 14

II. What is the principal of accession?

Answer 14

Ownership of a thing includes by accession everything that it produces or is united with, subject to certain exceptions.

Question 15

What is a fruit?

Answer 15

Fruits are things derived from or produced by another thing without diminution of its substance. The owner of a thing acquires the ownership of its fruits in the absence of rights of other persons.

Question 16

What is a product?

Answer 16

Unlike fruits, products result in a diminution of a thing; i.e., they are nonrenewable resources (like oil). Products belong to the owner of the thing.

Question 17

How does accession apply to immovables?

Answer 17

Unless otherwise provided by law, ownership of a tract of land carries with it the ownership of everything that is directly above or under it.

Question 18

III. How is ownership of property transferred?

Answer 18

The answer depends on whether an immovable or movable is transferred.

As between the parties, immovables are transferred when there is a written agreement that transfers ownership. As to third parties, transfer of an immovable occurs when an instrument is filed in the conveyance records of the parish in which the immovable is situated.

Ownership of a movable is transferred voluntarily by a contract between the owner and a transferee that transfers ownership.

Transfer of immovables is a much more formal process than transfer of movables. When dealing with an immovable, remember to look for a written agreement and a filing of the conveyance.

Question 19

IV. How does co-ownership work in Louisiana?

Answer 19

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.

Question 20

What are the rights and duties of co-owners?

Answer 20

Co-owners have equal rights to use the thing in accordance with its historical use.

A co-owner is entitled to reimbursement for necessary expenses and for expenses for ordinary maintenance and repairs, subject to a reduction commensurate with the value of the co-owner’s exclusive enjoyment.

Substantial alterations or improvements to the thing held in inclusion may be undertaken only with the consent of all the co-owners.

When substantial alterations or improvements are made to co-owned property that are consistent with the use of the property but are made without all of the co-owners’ consent, the other co-owners may not demand their demolition and removal. They are bound to keep them and must pay to the “improver” for the improvements.

When substantial alterations or improvements are made to co-owned property that are inconsistent with the use of the property or are made over the express objections of a co-owner, the other co-owners may either demand demolition/removal or adopt the improvement and compensate the improver for the cost. The co-owners in good faith may par, at their option, either the current value of the materials and workmanship used or the enhanced value of the immovable.

Question 21

V. What is the dismemberment of ownership a.k.a. what are servitudes, generally?

Answer 21

Servitudes are rights in things less than full ownership.

Question 22

What is full ownership?

Answer 22

Full ownership is a bundle of rights. Its constituent elements are (i) the right to use and enjoy the property (i.e., usus); (ii) the right to the fruits produced from the property (i.e., fructus); and (iii) the right to alienate and encumber the property (i.e., abusus).

Question 23

What are predial servitudes?

Answer 23

A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
A predial servitude may be natural, legal, or conventional (i.e., voluntary).

Question 24

What is an estate?

Answer 24

An “estate” is a distinct corporeal immovable. Tracts of land, buildings, and standing timber are estates, but constructions (other than buildings) are not, and hence are not susceptible to predial servitudes.

Question 25

What is a legal predial servitude a.k.a. legal servitude?

Answer 25

Legal servitudes are those imposed by law, for the benefit of the general public or particular persons.

There are legal servitudes which are limitations on ownership like the servitude to keep buildings in good repair, fix rain drip from roof, and to not erect an encroaching building.

There are legal servitudes on common enclosures like common walls, fences, ditches and plants.

There are also legal servitudes on enclosed estates. An owner of an estate that has no access to public road or utility may claim a right of passage (for indemnity) over neighboring property to the nearest public road or utility. The utility or road can even be constructed.

The owner of the dominant estate must indemnify his neighbor for the right passage acquired and the damage he causes. The right can be lost by prescription.

This servitude of passage is limited to the kind of traffic or utility that is “reasonably necessary” to use the enclosed estate.

Question 26

What is a conventional predial servitude a.k.a. conventional servitude?

Answer 26

A conventional servitude may be established by an owner on his estate or acquired for its benefit.

It may be established by (i) title, (ii) destination of owner, or (iii) acquisitive prescription.

The establishment of a predial servitude by title is an alienation of a part of property.

The establishment of a predial servitude by destination of owner occurs when an owner of two parcels acts to create an apparent servitude, then alienates one of the parcels, the apparent servitude comes into existence automatically by destination. Note, servitudes run with the land, so when the owner dies and his property is passed on, the one to inherit also has the right to use the predial servitude created by destination of owner.

Question 27

What is prescription?

Answer 27

Prescription is generally defined as the effect of time on legal rights. Louisiana has three types: 1. Acquistive Prescription, 2. Liberative Prescription (Statute of Limitations), and 3. Prescription of Nonuse.

Question 28

How is a conventional predial servitude established by acquistive prescription?

Answer 28

An apparent conventional predial servitude (perceivable by exterior works) may be acquired by acquistive prescription of either 10 years (with good faith and just title), or 30 years (in the absence of good faith and just title).

Question 29

How are conventional predial servitudes extinguished?

Answer 29

Conventional servitudes are extinguished by (i) total and permanent destruction of the dominate estate, (ii) prescription of nonuse (10 years of nonuse), (iii) estates become owned by the same person, (iv) servient estate is abandoned, (v) dominant estate owner renounces, (vi) or the term expires.

Question 30

What are personal servitudes? How many types are there? And what is the difference between them and predial servitudes?

Answer 30

A personal servitude (3 types - usufruct, habitation, and right of use) is a charge on the thing for the benefit of a person. The act creating the servitude controls the type of servitude. If the act is ambiguous, a servitude is presumed to be predial if it confers an advantage on an estate.

Question 31

What is a usufruct, the first type of personal servitude?

Answer 31

Usufruct is a real right of limited duration on the property of another. The holder of the usufruct–the usufructuary–has the right to use the property and to enjoy its fruits, while the naked owner holds the right of abuse (alienate & encumber).

The nature of the right of usufruct hinges on whether the usufruct is over a “consumable” thing or over a “nonconsumable” thing.

Consumables are things that cannot normally be used without their substance being changed (money, food, stocks of merchandise, etc.).

The usufructuary becomes the owner of the consumable (may consume, alienate, encumber), but she must pay the naked owner when the item is consumed or replace the consumable with things of the same quality and quantity.

Nonconsumables are things that can be used without their substance being altered, even though natural deterioration may gradually occur (e.g., shares of stock, land, a house, animals, vehicles, or furniture, etc.).

The usufructurary of nonsonsumables has the right to possess them and to derive the utility, profits, and advantage that they may produce. He is bound to use them as a prudent administrator and to deliver them to the naked owner at the terminiation of the usufruct. The usufruct is bound to preserve the substance of the nonconsumable.

Question 32

What are the rights and duties of the usufructuary? What are the rights and duties of the naked owner?

Answer 32

The usufructuary may make improvements and alterations to the property at his cost and with the naked owner’s written consent. A usufructuary has the right to remove all improvements he has made (whether or not he got consent) but must restore the property to its former condition and will not be reimbursed for those improvements he cannot remove.

If the naked owner withholds consent, the usufructuary may make, at her own cost, any improvements that a prudent administrator would make, after giving notice to the naked owner and receiving court approval.

The usufructuary has the duty to make all repairs caused by his own fault, and the duty to make all other repairs that are ordinary.

Ordinary repairs and maintenance are those necessary to keep the property in good working order.

The naked owner is responsible for extraordinary repairs, but the naked owner cannot be compelled to make them. The usufructuary can make these repairs if he chooses and receive compensation at the termination of the usufruct.

A naked owner may not (i) make alterations on the property, (ii) interfere with the enjoyment of the usufruct, or (iii) affect the usufruct. A naked owner may (i) dispose of the naked ownership, (ii) establish real rights if they can be exercised without impairing the usufructuary’s rights, or (iii) restore damage or make repairs.

Question 33

What is right of use, the third type of personal servitude?

Answer 33

Right of use is a personal servitude that confers a specified use of an estate less than full enjoyment. The right may be established in favor of a natural person or a juridical person. Right of use is governed by rules of usufruct and predial servitude to the extent that they are compatible with a right of use.

TIP: If the act purporting to create a right of use exhausts the utility of the property, then it is a usufruct rather than a right of use.

Question 34

VI. What are building restrictions?

Answer 34

Building restrictions are charges imposed by the owner of an immovable pursuant to a general plan that governs building standards, specified uses, and improvements.

Question 35

VIII. What is possession and what is occupancy? What’s the difference?

Answer 35

Possession is the detention or enjoyment of a thing that one holds or exercises by himself or by another who keeps it in the possessor’s name. To acquire possession, one must (i) take corporeal (i.e., physical) possession of the thing and (ii) intend (animus) to possess it as owner.

Occupancy is a method of acquiring ownership of a thing through possession. The thing must be (i) a corporeal movable, (ii) the thing belongs to no one, and (iii) the captor takes possession of the thing.

Question 36

VIII. What are the two types of acquisitive prescription of immovables?

And what is a precarious possessor? How does the that status affect acquisitive prescription?

Answer 36

There are two types of acquisitive prescription of immovables: (i) ten year and (ii) thirty year.

Ownership and other real rights in immovables may be acquired by the prescription if the possessor can show (i) possession for 10 years, (ii) in good faith, (iii) just tile, and (iv) the thing is a thing susceptible of acquisition through acquisitive prescription (a.k.a. a private thing).

Ownership and other real rights in immovables can be acquired by 30 year prescription without the need of either just title or possession in good faith. This is bad faith acquistive prescription and corpus (exercise of physical use) and animus (intent to use) must be shown. Animus is presumed but can be rebutted.

Notably, one who performs acts with permission on behalf of another is a precarious possessor – a status that continues unless the possessor gives the owner notice that the possessor intends to own adversely. In such a case, the precarious possessor does not possess adversely at all.

Question 37

IX. How does acquisitive prescription apply to movables?

Answer 37

There are two types of acquisitive prescription of movables: (i) three year and (ii) ten year.

Three-year acquisitive prescription requires (i) possession as owner without interruption for three years; (ii) good faith; and (iii) an act sufficient to transfer ownership. The juridical act requirement here is similar to the just title requirement for immovables; only here, however, the title need not be written or recorded.

One who possesses a movable for 10 years as owner acquires its ownership through acquisitive prescription without regard to just title or good faith.