Louisiana Civil Law Flashcards
(207 cards)
1
Q
_________ ______ may be animate or inanimate, but they can be seen, felt or touched, such as land or buildings.
A
Corporeal things
2
Q
___________ ______ may be understood or comprehended by the mind or thinking. Rights are always incorporeal and include rights of inheritance, servitudes, and obligations.
A
Incorporeal things
3
Q
_______ ______ are owned by individuals, other private entities such as corporations, limited liability
companies, limited liability partnerships, or by the state or the government.
A
Private things
4
Q
______ ______may not be owned by anyone. These include the air and the high seas.
A
Common things
5
Q
______ ______ are those things owned by the state or the local government. Examples include running water, navigable waters, the seashore, streets, and parks. They are available to the public for use, such as fishing, boating, driving, etc. However public places may be
subject to the police powers of the municipality.
A
Public things
6
Q
In Louisiana real property is divided into two categories: ________ and __________.
A
movables and immovables
7
Q
__________ consist of land, and its component parts such as buildings, timber, and unharvested fruits and crops when they belong to the owner of the land.
A
Immovables
8
Q
________ __________ include buildings and standing timber when they belong to a person other than the owner of the ground. Only buildings and standing timber may be ________ __________.
A
Separate immovables
9
Q
________ by ____________ include unharvested fruits and crops when they belong to a person other
than the owner of the land.
A
Movables by anticipation
10
Q
All rights and actions that apply to immovables are classified as
___________ __________. The right of ownership is an ___________ _________. Predial servitudes such as natural, legal, or conventional servitudes, are ___________ __________. Personal servitudes
established on the immovable, usufruct, habitation, and rights of use are ___________ __________. Also included in this classification are mineral servitudes, royalties, and mineral leases.
A
incorporeal immovables
11
Q
_________ ________ are things, whether animate or inanimate, that move or
can be moved from one place to another. The classification of _________ _______ includes building materials gathered for the construction or the erection of a new building, even if they came from the
demolition of an old one. However, materials separated from a building for purposes of repair, with the intention of putting them back, remain immovables. Rights, obligations, and actions that apply
to a movable thing are incorporeal movables. The classification of incorporeal movables includes such items as stocks, bonds, and annuities.
A
Corporeal movables
12
Q
_________ by _____________ includes things attached or incorporated into a building or other construction. They become component parts of the structure. This includes building materials. Once
incorporated into an immovable, the thing becomes an immovable.
A
Component by incorporation
13
Q
_________ by __________ Things are considered permanently attached to a building or other construction if they cannot be removed without substantial damage to themselves or damage to the
immovable to which they are attached. Things that are considered permanently attached to a building include such things as plumbing, heating, cooling, electrical, or other installations. Accordingly, they constitute component parts of the building or construction.
A
Component by attachment
14
Q
_________ by ___________ and ________ Things that would otherwise be classified as immovable may be classified as movable. The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private
residence, for its service and improvement are deemed to be its component parts. The declaration must be filed for registry in the conveyance records of the parish in which the immovable is located.
If the declaration is not so filed, the machinery, appliances, and equipment remain classified as movables.
A
Component by declaration and registry
15
Q
In order for a ______ ____ to be considered an immovable, a declaration stating
that it will remain permanently attached to the land must be filed in the public records of the parish in which the land is located. The wheels must be removed, the tongue cut off, and it must be tied down.
A
Mobile Home
16
Q
__________ ____ A manufactured home may be deimmobilized by detachment or removal. But, to affect third persons, an authentic act of sale or mortgage or sale with mortgage must be filed in the
appropriate mortgage and/or conveyance records.
A
Detachment Sale
17
Q
An ______ is a French unit of measure about equal to 5/6 of an acre. It is also used as a linear measure about equal to 192 feet.
A
arpent
18
Q
In Louisiana, there are two principal meridians, the 91st West of the
Mississippi River, called the _________ ________, and the 90th East of the Mississippi River, called the __ ______ ________. There is one base line which transects the State of Louisiana at its
center.
A
Louisiana Meridian
St Helena Meridian
19
Q
_________ is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions
established by law.
A
Ownership
20
Q
Louisiana law divides ownership into three categories:
1.
2.
3.
A
Usus
Fructus
Abusus
21
Q
____ The right to use a thing, and to exclude others from using it.
A
Usus
22
Q
_______ The owner of a thing owns the fruits produced by the thing that comes from exploiting and enjoying the thing, such as rents and royalties and natural fruits such as crops and timber.
A
Fructus
23
Q
______ is the right to alienate or dispose of the thing. It includes consuming it, giving it
away, selling it, and encumbering it by mortgage or pledge.
A
Abusus
24
Q
A person who owns both the usus and the fructus owns the ________.
A
usufruct
25
The owner of the remaining right, the abusus, is called _____ _________.
naked ownership
26
A servitude is a charge on a thing. There are two kinds of servitudes:
________ __________
_______ __________
personal servitudes
predial servitudes
27
A ________ _________ is a charge on a thing in favor of a person. There are three kinds: usufruct, habitation, and right of use. It can be compared to the Common Law easement in gross.
personal servitude
28
________ is a real right of limited duration on the property of another. The owner of
the ________ is called the ____________. The ___________ has the right to the use and the
fruits of the property for a limited period of time, usually for life.
Usufruct
usufructuary
29
If a thing cannot be used without being consumed or expended or its substance changed, such as money, food, beverage, it is a __________, and the usufructuary becomes the owner of the thing.
consumable
30
Things that can be enjoyed without altering their substance, such as land, houses, or livestock, are ______________. The usufructuary does not have the right to dispose of ______________, unless that express right was granted to him.
nonconsumables
31
A ________ may be established by an agreement between those living, by testament effective at death, or by operation of law (such as the ________ of the surviving spouse in an intestate
succession.)
usufruct
32
___________ ________: is one that is created by an act.
Conventional Usufruct
33
_____ ________: is one that is created by operation of law.
Legal Usufruct
34
Death of the usufructuary will terminate the ________. The ________ will also terminate, if the ________ is held by a legal entity which ceases to exist.
usufruct
35
The usufructuary may lease, alienate ,or encumber his right. This is called _________. Any contracts which alienate or encumber the usufruct will end when the usufruct is terminated. The usufructuary remains liable to the naked owner for any abuse by the assignee of the usufruct. The naked owner may dispose of the naked ownership and may alienate or encumber the property. Such action, however, will not affect the usufruct.
disposition
36
__________ is a nontransferable real right of a natural person to dwell in the house of another. It may be established in the same manner as a usufruct. It terminates with the term provided or death of the person having it. Moreover, the personal servitude of ________ may not be alienated, let, or encumbered.
Habitation
37
_____ of ___ is a personal servitude that confers in favor of another person a
specified use of an estate less than full enjoyment. The _____ of ___ is transferable and may be inherited, unless prohibited by law or contract. An example would be a hunting license.
Right of use
38
A _______ _________ is a charge on a servient estate for the benefit of a dominant
estate and is similar to easement appurtenant under the common law. The dominant estate is the one benefiting from the servitude. The servient estate is the one who gives the servitude. The two estates (land, usually) must belong to different owners and must be located in such a position that one benefits or it may be reasonably expected to benefit from the charge placed on the other.
predial servitude
39
The _______ _______ can only be terminated by the dominant estate, that is the landowner needing access. It is inseparable from the dominant estate and passes with it. The right cannot be sold or
encumbered separately from the dominant estate. If the servient estate is sold, the servitude continues even after the sale. The most common example is when one landowner obtains access across the property of the adjoining landowner to reach a public road or
a water source.
predial servitude
40
_______ _________ may be natural, legal, or voluntary or conventional
Predial servitude
41
_______ __________ A property which lies at a lower elevation will naturally receive surface waters flowing from an adjoining property which is at a higher elevation. This running water may be used, but
not stopped, nor diverted.
Natural servitudes
42
_____ ________ are limitations on ownership established by law for the benefit of the
general public or for the benefit of particular persons. An owner of a building must keep his building in repair so that neither it nor its materials will fall on or damage a neighbor or passerby. The owner of a building near a wall, whether or not a common or party wall, must protect his neighbor against injury. Neither projections over boundaries nor water falling from a roof onto the ground of a neighbor are allowed. An owner of property may do with his estate whatever he pleases; however, this right is limited by his responsibility to not damage
a neighbor.
Legal servitudes
43
A _____ ____ is one which rests half on one property and half on an adjoining property. The first person to build a wall may build half of the wall on a neighbor's land, if the first story is constructed of masonry not over eighteen inches in width and three inches of plaster. To become a common wall, the neighboring
landowner must pay one-half (1/2) its current value.
party wall
44
An owner without access to a public road may claim a right of passage to the nearest public road; however, he must pay for the damage occasioned as a result. The owner of the ________ ______ may construct the type of road necessary, along the shortest route, generally at a location least injurious to intervening lands.
enclosed estate
45
A predial servitude may be created by contract, that is by agreement of the parties. Examples of ____________ __________ would be the rights of passage, projection, view, etc
Conventional Servitudes (Voluntary)
46
A servitude may be acquired by ___________ ____________, that is by peaceable and uninterrupted possession of the right for ten (10) years in good faith and with just title or by uninterrupted possession for thirty (30) years without good faith or just title. A predial servitude may be lost by nonuse for ten (10) years.
acquisitive prescription
47
When the same person acquires both the dominant the servient estates, the predial
servitude ceases to exist. The term for this is "_________" which is similar to the common law term "merger."
Confusion
48
________ ____________ govern building standards, uses, and improvements. They are enforced landowner in the subdivision filing suit in court to obtain an injunction. The violator may also be sued for damages.
Building restrictions
49
If no termination date or other provision appears in the act creating the restrictions, ________ ____________ may be terminated or amended as follows:
1. After the restrictions have been in effect for fifteen (15) years, the agreement of owners representing more than one-half the land area (excluding streets and rights-of-ways); or
2. By the agreement of both (a) owners representing two-thirds (2/3) of the land area, and
(b) two-thirds (2/3) of the owners of the land (excluding streets and right-of-ways) affected by the restriction after the restrictions have been in effect for ten (10) years.
3. By abandonment of the whole plan or by the general abandonment of a particular restriction. If a particular restriction is abandoned, the affected area is freed of that restriction only.
building restrictions
50
If a homestead is sold at the sheriff’s sale, the homeowner is assured that his homestead will sell for more than $25,000.00 and that the owner may retain or receive the first $25,000.00. The right to a homestead may be waived. In any Voluntary Act of Mortgage, the act itself will invariably contain a clause in which homestead rights are waived. However, both spouses must sign if there is a waiver. By operation of law, the _________ _________ is waived, if the mortgagor is single.
This is not to be confused with the $7500 homestead exemption for property taxes.
homestead exemption
51
__-_________ is ownership by two or more persons, each having an undivided share, often called an undivided interest. The share or interest can be in any proportion, equal or unequal, as stated in the contract
and may be acquired at different times and by different methods. Each owner may exercise all rights of ownership of his undivided interest, subject to legal and conventional limitations, without consent or knowledge of his co-owners.
Co-Ownership (Undivided Interest)
52
_________ ________ or matrimonial regime is a system of principles and rules governing the ownership and management of the
property of a married person or between themselves and toward third persons. The matrimonial regime may be established by law or by contract, or a combination.
Community Property (Matrimonial Regime)
53
The spouses, before marriage if residents of Louisiana or within one year after acquiring a domicile in this state, may enter into a ___________ _______ or contract, without court approval, modifying or rejecting the legal matrimonial regime. Without such a ___________ ________, a legal
matrimonial regime exists in accordance with law, regardless of domicile at the time of or the place of the celebration of their marriage. The ___________ _________ must be made by authentic act or act under private signature. It is effective against third parties as to immovable property when filed in the conveyance records of the parish where the
immovable property is situated.
matrimonial agreement
54
If there is no matrimonial agreement to the contrary, then any property acquired during the marriage is considered to be _________ ________. Each spouse owns an undivided one-half interest in the property. Neither spouse may sell, encumber, or lease any immovable
community property to a third person without the agreement of the other spouse. Anything in the possession of a spouse during the existence of the community is presumed to be
________ ________, and anything acquired during the marriage through the effort, skill or industry of either spouse is _________ ________.
Community Property
55
The fruits and revenues of separate property, unless specifically reserved as separate property by the spouse are also community property. In order to reserve the ______ of ________ ________ as separate property, a declaration must be made by affidavit and recorded in the parish where the separate property is located. There must be no commingling of the fruits with community property, that is funds must be in a separate bank account.
fruits of separate property
56
________ ________ consists of property acquired prior to the marriage, inherited by a spouse, donated to a spouse individually, things bought with separate funds, etc., including things acquired by partition of the community.Because of the presumptions and possible challenges to the ownership of property, both
spouses should sign all documents.
Separate property
57
In Louisiana, a limited partnership is often called a ___________ in _________. A partnership is a legal entity distinct from its partners. Immovable property acquired in the name of the partnership is owned by the partnership, if at the time of the acquisition, the partnership agreement is in writing. If the partnership agreement was not in writing, the partners own the immovable individually. The partnership must be recorded with the Secretary of State in order to be effective against third
parties.
partnership in commendam
58
Louisiana ____________ and ______ _________ _________ may own and dispose of immovables, unless the articles provide otherwise.
corporations and limited liability companies
59
___________ and __________ The Louisiana Condominium Act sets forth numerous provisions affecting the acquisition,
ownership, alienation, and management of property which forms part of a condominium. Louisiana has no specific law on townhouses. It is widely understood that the owner of a unit in a townhouse project owns the land under the structure, while in a condominium the land is a common element and the owner only owns an undivided interest, however, this is not the law in Louisiana. Ownership
can only be determined by referring to the condominium declaration establishing the condominium regime. Some declarations make all land a common element, and some grant sole ownership to the
unit owners.
Condominiums and Townhouses
60
________ of _________Property may be transferred by sale, donation, succession, accession, prescription, and other operations of law.
Transfer of ownership
61
A person may dispose of or receive property by a ________. _________ take effect in two forms, namely, donations inter vivos and donations mortis causa.
Donations
62
_________ _____ _____ are donations between living persons. This donation is a
gift from one person to another.
Donations inter vivos
63
There are three types of inter vivos donations:
HInt: GOR
Gratuitous
Onerous
Remunerative
64
A __________ donation is a gift made without condition.
gratuitous
65
An ______ donation is burdened with charges imposed upon the donee, or
person receiving the donation.
onerous
66
A ____________ donation is made to repay the donee for services rendered. If the value of the donated thing must be substantially greater than the amount
of the remuneration, or it would be a sale rather than a donation.
remunerative
67
The donor of immovable property may _______ the usufruct to himself. Also, he may stipulate the _____ of _______ of the object given should he survive the donee.
reserve
right of return
68
A donor may ______ a donation for several reasons, including ingratitude by the donee, nonfulfillment or non-performance of conditions, or conventional return. A donation in the chain of title, then, is a potential title problem.
revoke
69
This is another name for a will. A ________ ______ _____ is an act by which an individual
disposes of his property with the actual donation to take effect upon the death of the _____. The act is usually called a last will and testament, but requires the same formalities as other donations. There are several kinds of wills, each having certain requirements.
donation mortis causa
donor
70
Effective July 1, 1999, Louisiana will recognize only two forms of testaments, __________ and ________ wills.
olographic
notarial
71
__________ ____ is one which is written dated, and signed by the testator or
testatrix in his or her own handwriting.
Olographic will
72
________ ____ is one which is written, usually typed, and signed by the testator in the presence of a notary and two witnesses. It is similar to what was previously known as the ________ ____.
Notarial will
statutory will
73
______ is the acquisition of the willed property, or succession by the legal heir or the testamentary heir, and it occurs immediately upon death, even if the heir does not know of the death.
Seizen
74
__________ is the process of transmission of the estate of a decedent to his successors. It also refers to the specific legal proceeding filed to recognize successors and place them in possession.
Succession
75
There are two types of successions: _______ and _________.
testate
intestate
76
_______ ________ occurs when there is a will.
Testate succession
77
_________ __________ occurs when there is no will.
Intestate succession
78
__________ are those who inherit.
Successors
79
There are two types of successors: ________ and _____.
legatees
heirs
80
________ are testate successors , (those named in a will to inherit).
Legatees
81
_____ are intestate successors, (those who inherit when there is no will.
Heirs
82
______ of a ________ means the property, rights, and obligations that a person leaves after his death and all that have accrued since his death.
Estate of a decedent
83
The children of the ________ (deceased) must inherit the forced portion, at least. If there is no will, the children inherit the full estate of the deceased person, and the spouse retains usufruct. The spouse may be given usufruct in the will. If there are no descendants and no will, the spouse inherits the deceased share of the community property. If there are no descendants, the deceased may will his
share to whomever he wishes. Remember, if there is a living spouse, the estate of the deceased person consists of his or her half of the total estate.
decedent
84
______ _______, or _______ is that portion of the property of the decedent that his forced heirs mustreceive upon his death. The balance of the decedent's estate is called the __________ _______.
Forced Portion, or Legitime
disposable portion
85
The __________ _______ is three-fourths (3/4) if the decedent leaves one (1) forced
heir at his death and one-half (1/2 ) if the decedent leaves two (2) or more forced heirs.
Disposable portion
86
______ _____ are the children of the decedent who at the time of the death of the decedent are:
1. Twenty-three (23) years of age or younger ( or under 24); or
2. Any age, but because of some mental incapacity or physical infirmity are permanently incapable of taking care of their persons or managing their property;
Forced heirs
87
There are specific reasons for which a parent may disinherit his forced heirs. A forced heir cannot be disinherited for any reason other than those stated in the codal provisions governing ____________.
disinherison
88
The causes to __________ a forced heir are seldom used. The latest causes to be added include:
A forced heir's failure to communicate with his parent for a two-year period after obtaining the age of majority (18), if the child knew how to contact the parent (unless on active duty in the military service); and
A forced heir's conviction for a crime for which a sentence of life imprisonment or death could be imposed.
disinherit
89
The testator may leave a ________ to the surviving spouse for a specified period of time, until remarriage, or for life. The ________ may encompass all of the deceased's community and separate
property that is inherited by the forced heirs of the marriage. If the ________ affects the rights of heirs other than forced heirs of the marriage between the deceased and the surviving spouse or affects separate property, the forced heirs may request security. In either case, the ________ does not impinge upon the legitime.
usufruct
90
_____ of _________ The ownership of a thing includes, by _________, the ownership of everything that it produces or is united with it, naturally or artificially. Ownership of a tract of land carries with it ownership of everything directly above and beneath. This includes air space. The owner may do as he pleases and draw all advantages, subject to restraints by law or rights of others.
Right of Accession
accession
91
_______ ______ transfer with the land unless stated in the contract. However, if _______ ______ are retained by a contract, they may only be retained for ten years if there is no activity.
Mineral rights
92
If buildings or other constructions are made on the property of the owner without his consent, such items belong to the _____ of the land.
owner
93
Components, which are incorporated into or are an integral part of an immovable or are permanently attached to a building or other construction, belong to the _____ of the immovable in which they are
incorporated or attached
owner
94
If a ____ _____ _______ makes constructions, plantings, or works, he may recover the cost of materials and the workmanship, their current value, or the enhanced value of the immovable. The possessor may not be forced to demolish or remove the improvements.
good faith possessor
95
If a ___ _____ _________ makes the improvements, the owner of the
immovable may: (1) keep them or (2) demand their demolition and removal at the possessor's expense and (3) recover damages. If he keeps the improvements, he must pay the possessor the
current value of the materials and the workmanship or the enhanced value of the immovable.
bad faith possessor
96
________ is the natural build up of soil along the bank of a river or stream, whether navigable or not. The ________ belongs to the owner of the bank, subject to public use. There is no right of ________ on the shore of the sea or lakes.
Alluvion
97
__________ is formed by water receding from a river or stream. The owner of the land situated at the edge of the bank left dry owns the ___________. There is no right of dereliction on the shore of the sea or lakes.
Dereliction
98
When the ______ ______ of _____ carries away an identifiable piece of ground and unites it with other land on the same or opposite bank, the owner does not lose the property, if he claims it in writing within a year, or if over a year, he may claim the land if another owner has not taken possession. This is called avulsion in the Common Law states.
Sudden action of water
99
If a _________ _____ or ______ abandons its bed and opens a new one, the owner of the land on which the new bed is located takes ownership of the abandoned bed
(proportionate to the land he lost). If the river returns to its old bed, the owner takes ownership of his former land.
Navigable rivers and streams
100
_______ and ________ that are not attached to the bank, formed in the beds
of navigable rivers or streams belong to the state.
Islands and sandbars
101
________ ______ The riparian owner on a non-navigable river or stream owns to the middle of the bed (in the absence of title or prescription).
Riparian rights
102
_______ ______ is the right or power of the government to take private property for public use upon paying just compensation.
Eminent domain
103
Condemnation is the Common Law term describing the use of the power or right of eminent domain. Louisiana uses two terms: (1) _____________ & (2) ___________.
expropriation
appropriation
104
____________ is the authorized judicial taking of private ownership rights upon payment of just compensation. It is a synonym for “taking”. _____________ is the action which is authorized by the right of eminent domain. ____________ must be made to the owner of the property being taken. While many consider fair market value to be the measure, just compensation also includes all loss
suffered by the owner. For instance, a business firm that must acquire a new location and build a comparable structure because of the expropriation of its present location and structure is entitled to relocation costs and acquisition and construction expenses
Expropriation
Compensation
105
_____________ is the unauthorized use by the government to deprive an owner of his property without conforming to law. _____________ is also used to describe an exercise of public property rights, without paying compensation, pursuant to the inherent police powers of a government,
recognized by the courts as valid.
Appropriation
106
_____ ______ Expropriation for state highway purposes is a comparatively short, litigation process. The DOTD may file an expropriation suit, citing the public purpose and placing in the custody of the Clerk of Court the funds offered as just
compensation. Ownership transfers to the state upon such filing. The owner has ten (10) days to protest based on the lack of public purpose with little chance of success. If not satisfied with the
compensation, however, the owner may contest the amount of compensation and is entitled to a trial by jury.
Quick taking
107
_________ __________ is the exercise of physical acts of use or enjoyment. Examples are residing in a house, cultivating land, building fences, and other similar activities.
Corporeal possession
108
____________ __________: When a person possesses part of an immovable, he is deemed to have ___________ __________ of the entirety of the property within the limits of his title. In the absence of a
title, a person possesses only the area in which he exercises actual physical possession.
Constructive possession
109
Ownership of immovable property may
be acquired by possession for a period of time called ___________ ___________.
acquisitive prescription
110
The prescriptive period for ____ _____ __________ is ten years. Ownership may be acquired after possession for ten years
if it was continuous, uninterrupted, peaceable, public, and unequivocal and in good faith at the time possession commenced. Good faith means the possessor believed it was his land.
Good Faith possession
111
___ _____ __________ is thirty years. Requirements for possession in bad faith include possession are the same as for good faith except that the person claiming ownership does not believe that the land is his. Neither good faith, nor just title, is required. This prescription is analogous to the common law concept of squatters' rights or title by adverse possession, although these are not Louisiana terms.
Bad Faith possession
112
__________ is a legal relationship whereby a person (called the obligor) is bound to render a performance in favor of another person (called the obligee).
Obligation
113
_______ is the person bound by the obligation.
Obligor
114
_______ is the person for whom the obligation is performed.
Obligee
115
________ is an agreement by two or more parties whereby obligations are created, modified, or extinguished.
Contract
116
An obligation is ________ for the obligees when it gives each the right to demand the whole performance from the obligor. It is ________ for the obligors when each obligor is liable for the whole performance. For example, if more than one person is obligated for a debt, the
obligation is ________ if each one may be held liable for the entire amount. Solidarity must be expressed or must result from law. It cannot be presumed
Solidary
117
________ is the extinguishment of an existing obligation by the substitution of a new one. Common law jurisdictions define ________ to be a substitution of parties, thereby releasing the original parties.
Novation
118
An obligation is extinguished by _________ where the obligor and obligee are united in the same person.
Confusion
119
__________ ________ is one in which only one party is obligated.
Unilateral contract
120
_________ or _____________ ________ is one in which both of the parties are obligated.
Bilateral or synallagmatic contract
121
_______ ________ is one in which each party obtains an advantage in exchange for his obligation, but the advantages are unequal in value. An _______ ________ places a burden on one party.
Onerous contract
122
__________ ________ is one in which one party is obligated for the benefit of the other, but receives no advantage in return.
Gratuitous contract
123
If the offer specifies a time for acceptance, it is irrevocable during that time. If no time is specified then the offer is irrevocable for a reasonable time. An ___________ _____, if not accepted, will expire only after expiration of the time set or after a reasonable time.
Irrevocable offer
124
______ ________ is a contract whereby both parties agree that the offeror (usually a seller or lessor) is bound for a specified time and that the offeree (usually a buyer or lessee) may accept within that 8time. The buyer customarily purchases the right, or option, to accept or reject a promise to sell
within the stipulated time, and upon acceptance by the buyer, either party may enforce specific
performance. An option is an example of a unilateral contract.
Option Contract
125
_________ __________ _____ An acceptance of an irrevocable offer is effective when received by the offeror. That is, the buyer becomes obligated at the time the accepted offer is received by or communicated to the buyer or offeror.
Effective Acceptance Offer
126
An acceptance not in accord with the terms of the offer is a ____________. A
____________ is essentially a new offer and constitutes a rejection of the first offer.
counteroffer
127
In Louisiana, an obligation cannot exist without a lawful _____. _____ is the reason why a party obligates himself. Consideration is not mentioned or defined in the _____, which is not to say
the term "consideration" is not used because it is. However, if _____ is not present, there is no contract. This is true even if money is exchanged, a sales price exists, or the contract states the
consideration.
cause
128
A contract is ____ when all the necessary requirements are not met. If the contract violates a rule of public order, it is absolutely null and cannot be carried out. Contracts which have an illegal object are absolutely null. If a contract is flawed, but not illegal, it is relatively null, but may still be carried out. The term “absolutely null” is similar to the Common Law term “void”, and the term “relatively null” is similar to the Common Law term “voidable”..
null
129
Either party has the right to enforce ________ __________ if a contract has been made. In Louisiana, if a deposit is not designated as “earnest money” then it is considered to be a ________ ___________ deposit.
specific performance
130
_______ _____ is considered to be liquidated damages. Either party is at liberty to withdraw from the contract. The party who gave the _______ _____ must forfeit it to the other if he withdraws from
the contract. If the one who withdraws is the one who received the _______ _____, he must return double its amount to the other. Neither party can sue for specific performance or other damages.
Earnest money
131
To perfect a ____, there are three requirements:
(1) the thing sold
(2) the price
(3) the consent of the parties.
sale
132
All transfers of __________ must be in writing, as in other states. However, a verbal sale is good against a party if
(1) the immovable has been actually delivered and
(2) he confesses it when interrogated under oath.
immovables
133
However, Louisiana License Law states that all real estate sales contracts must be in _______.
writing
134
An _________ ___ is one executed and signed by each party and two witnesses before a notary public. The party may affix his mark, if he does not know how to sign. If a party is blind, there must be three witnesses. It is full proof of the agreement against the parties.
authentic act
135
An ___ _____ _______ _________ is one signed by the parties. It is full proof against a party only if it is acknowledged. There are several ways to acknowledge an ___ _____ _______ _________. One such way is for the party to appear before a notary public in the presence of two witnesses and recognize that the signature on the document belongs to him. Without full proof, a signature must be proved in court before it can be admitted into evidence.
act under private signature
136
_________ ________ The document itself transfers title from the seller to the buyer, however, to be effective against third persons it must be recorded in the public records of the parish where the
immovable is located. Without such registry, the sale is null as to third parties.
Effective transfer
137
The sales instrument transferring title is called a contract of sale, a sale or a
__________. The word "deed," although often used in some parts of the state, is a common law term. It does not appear in the civil code.
conveyance
138
A sale of immovable property may be rescinded for lesion, if the price was
below a certain point. If the price of the immovable was less than half the value the property had at the time of the sale, the sale may be rescinded for ______ ______ ______. If the buyer has already sold the property to a third person, the sale cannot be rescinded. However, the seller may recover from the buyer whatever profit the buyer realized from the sale to the third person. The time period in which
to file for ______ ______ ______ is one year.
lesion beyond moiety
139
___________ _____ Redhibition is the avoidance of a sale on account of some defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the defect. If the buyer knew of the defects, if they were apparent or could have been discovered by reasonable inspection, or if they were declared to him before or at the time of the sale, then redhibition is not available. The buyer must bring his action in redhibition against a seller who did not know of the defect within one (1) year from the date of delivery or within one (1) year of the date of his discovery of the defect, whichever occurs first. The buyer may demand reduction of price, instead of rescission, or the judge may decree it. The
name of this legal action is guano minoris.
Redhibitory vices
140
If the seller commits _____ by affirmatively declaring a quality that does not exist, damages and attorney's fees may be recovered.
fraud
141
________ ________ Although warranty is by law and need not be set forth in any agreement, it may be limited by agreement in the conveyance. Even so, the buyer may be entitled to return of the purchase price, unless he expressly assumes the risk.
Limiting warranty
142
________ in _________ Although the code does not provide for a quitclaim, it is customarily used to clear up clouds on title by releasing any possible right or interest in the property by the grantor. A
quitclaim is not a warranty of ownership but rather a statement that the grantor does not claim ownership.
Warranty in Quitclaim
143
___________ of ____ is a remedy of the seller for non-payment of the purchase price. This is a remedy in addition to and not dependent on a mortgage that may have been retained as security for the payment.
Dissolution of sale
144
_____ of __________ A seller may reserve the right to redeem the immovable property by returning the price. This right may not be reserved for more than ten (10) years.
Right of Redemption
145
The _______ __________ dealing with real estate licensees reflects that a licensee engaged in any real estate transaction is considered to be representing the person with whom he is working as a designated agent. A designated agent means the licensee named by the broker as the agent of the client. If there is a written agreement between the broker and the person stating that there is a different relationship or that the licensee is performing only ministerial acts on behalf of the person, then the licensee may be determined to represent another person.
special provisions
146
_____ not __________ by ____________
The agency relationship between a broker and the person for whom he is working is not determined by the payment of or promise to pay compensation.
Agency not determined by compensation
147
A licensee may also act as a dual agent, if he has the consent of all of the clients. A ____ ______exists when the Licensee works for both the buyer and the seller in the same transaction..
dual agency
148
_________ can only be created by a written agreement. A licensee is not a subagent of a client or another broker solely because of the affiliation of the broker with a multiple listing or other information service. The licensee should exercise great caution, however. There may be a situation in which the licensing law is not applicable. Furthermore, the articles on mandate apply in many instances in the practice of the licensee, particularly when a power of attorney is involved. The laws of agency studied in other jurisdictions do not materially differ, and the licensee should be familiar with them.
Subagency
149
_______ _________ is not a _____ of ________
A mandate, procuration, or a letter of attorney is an act in which one person gives power to another to transact for him and in his name in one or several affairs. This does not include the usual listing
agreement between the owner and a licensee.
Listing agreement is not a power of attorney
150
The mandate is usually called a _____ of ________. It may be in writing, by public act, or by private act, even by letter.
power of attorney
151
____ Where an alienation or mortgage of an immovable is involved, the power of attorney should be executed in authentic act or by private act duly acknowledged. It must be an express power, setting forth specific authority to sell or buy, encumber or hypothecate, accept or reject a succession, and to contract a loan or acknowledge a debt, and it must be accepted by the agent (mandatary).
Form
152
A power of attorney __________ when revoked, the agent resigns or renounces, death of either principal or agent, bankruptcy of either, interdiction of the agent, qualifications of the curator after interdiction of the principal, occurrence of a resolutory condition stipulated, or when the purpose has been accomplished or becomes impossible.
terminates
153
__________ _____Of particular note is that, unless otherwise provided, a power of attorney is not revoked by the principal's incapacity, disability, or other condition making express revocation impossible or impractical. If recorded, persons may rely on it until it is terminated of record. However, a power of attorney terminates at the death of either the principal or the mandatary or upon the interdiction of the
mandatary or the principal.
continuing power
154
_________ is the right which the nature of the debt gives to a creditor and which entitles him to be preferred before other creditors, possibly even over those who have mortgages. The words _________
and lien are used interchangeably. The licensee most often comes in contact with two __________, the vendor's and the labor or mechanic lien.
Privilege
155
_______ ____ is granted to a seller for the unpaid sales price.
Vendor's lien
156
The privilege granted to workmen and laborers is called by such names as labor
liens, materialman's lien or privilege, workman's privilege, etc. The privilege may be filed within sixty days after the last work done on the project, regardless of when the work was done or materials
furnished by the one claiming the privilege. _________ _____ usually have priority over other prior recorded liens, except for tax liens.
Mechanic's liens
157
________ is a type of pledge of immovable property to secure a debt, but the debtor (mortgagor) retains possession. The creditor (mortgagee) has the power of having the property seized and sold in default of payment or other conditions set forth in the act of ________.
Mortgage
158
A ____________ ________ is a contract. The parties may agree to whatever terms they desire within limits of the law. The mortgagor (borrower/owner) may even limit his liability to the loss of the property so that he incurs no personal liability. If the buyer successfully limits his personal liability, his liability is known as in rem
liability.
conventional mortgage
159
A _____ (tacit) ________ is one stipulated by law, such as a mortgage against the property of a tutor or curator as security for his administration of the property. It affects all after-acquired immovables, unless it is by law limited to specific property.
legal (tacit) mortgage
160
________ ________ results from a recorded monetary judgment against a debtor. It affects all non-exempt property of the judgment debtor, including after-acquired immovables. Many buyers, with judgments or legal mortgages affecting them, do not realize that these mortgages will affect immovables they later acquire, in turn affecting their plans to refinance or resell. A title examiner will normally order a mortgage certificate in the buyer's name, as well as in the name of the seller, in order to determine the existence of
such encumbrances both before and after acquisition by a buyer.
Judicial mortgage
161
___________ of _________ In order to give notice to third parties all mortgages must be recorded in the public records in the parish where the immovable is located.
Recordation of Mortgages
162
The ______ ______ has the duty of causing the mortgage to be recorded without delay, unless the parties expressly agree in writing otherwise.
notary public
163
______ The mortgage should be an authentic act, preferably, or one under private signature duly acknowledged. The notary public signs his name on the note or other obligation secured, including the
date, and identifies the security instrument. He will also write "__ ________", indicating the note is without change and is the same one described in the Act of Mortgage passed before the Notary.
Paraph
Ne Varietur
164
________ of _____: Generally, mortgages take effect and priority in the chronological order in which they
are recorded. The collateral mortgage is often an exception, depending on when funds are advanced on the hand note. Also, some privileges, such as vendor's privilege and a workman's privilege, may
take precedence over a previously recorded mortgage. Liens for unpaid property taxes take precedence over all mortgages and other privileges.
Priority of liens
165
The __________ of the mortgage, or of the obligations of the note secured by the
mortgage, makes the buyer solidarily liable with the original mortgagor. Only if a specific release is obtained, or by passage of time under a F.H.A. insured loan, is the original mortgagor released from liability.
assumption
166
Assuming the obligations of a note which contains a "___ on ____" clause, without complying with its requirements, may accelerate the maturity of the note, even if the ___ on ____ clause does not appear in the mortgage.
due on sale
167
Buying _______ to a mortgage, instead of assuming the obligations of the note, leaves the original mortgagor liable, but makes the obligation an in rem one for the buyer, in that he is not personally liable. This will not prevent the mortgagee from foreclosing, however.
subject to
168
______ It is possible that buying an immovable hypothecated to a Savings and Loan Association may make the buyer personally liable on the note, whether the conveyance reads "assume" or "subject to."
Caveat
169
___________ To pledge as collateral while retaining the thing pledged.
Hypothecate
170
________ ___________ Upon default, the property is sold at the Sheriff’s sale and proceeds, up to the amount of the debt, go to the lender.
Mortgage Foreclosure
171
____ with ____________: Louisiana permits this type of foreclosure. If the property does not sell for the full amount owed, the creditor may obtain a deficiency judgment for the amount owed by the borrower above the proceeds of the sheriff’s sale. The debtor has the right to bid for the property only if the bid equals at least two-thirds of the appraised value.
Sale with Appraisement
172
____ without ____________: If no appraisal has been made, the lender forfeits the right to obtain a deficiency judgment.
Sale without Appraisement
173
____ in ____ of ___________, also known as a “friendly foreclosure”. Under this process the borrower, “sells” the property to the lender in return for the lender canceling the note. The lender does not retain the right of a deficiency judgment if the property sells for less than the borrower owed.
*In Louisiana, this process is called ______ __ ________.
Deed in Lieu of Foreclosure
dation en paiement
174
________ _______A mortgagee may foreclose by filing suit in a manner similar to filing other ordinary lawsuits. If a judgment is rendered for the amount of the note, plus costs, interest and fees and recognizes that the payment is secured by a mortgage affecting property, when the judgment becomes final, the judgment can be executed by having the sheriff seize and sell the property at public auction. It must be appraised and should sell for two-thirds the appraised value.
Ordinary Process
175
_________ _______ is the fastest way to
foreclose.
Executory Process/Importing confession of judgment
176
Generally, to utilize _________ _______ for the enforcement of a mortgage, several
procedures must be followed:
1. The act of mortgage must be by authentic act;
2. The note must be properly described and paraphed by the notary
3. The mortgage must contain proper clauses in which the mortgagor confessed
judgment, waived benefit of appraisement, possibly waived certain notices and delays, and consented to foreclosure by Executory Process.
executory process
177
No _____ is necessary. A petition may be filed, a court order signed and the property sold by the sheriff within a comparatively short period of time
trial
178
_________ _______ mortgage is one that provides for periodic payments that increase one or more times and adds accrued, but unpaid, interest to the unpaid principal balance.
Graduated payment
179
__________ ____ ________ loan provides that the rate of simple interest may be adjusted from time to time as set forth in the loan documents and is secured by a mortgage on immovable property,
leasehold improvements, mobile homes, or residential mobile home.The rates of interest may change according to certain indices, not different in principle from the
commonly used __________ ____ ________ in other states.
Adjustable rate mortgage
180
____-______ mortgage means a second or lower ranked mortgage that has a face amount that includes sums advanced plus outstanding balances on superior ranked mortgage or incorporates provisions for the debt servicing and any other matters related to superior mortgages, the unpaid
balances of which are included in the face amount of the ____-______ Mortgage.
Wrap-around
181
_____ means charging more than the legal interest rate. Generally, legal interest for a simple loan is equal to a rate published annually in the Louisiana Register. It is one percent above the average prime rate of Chase Manhattan Bank, N.A. Citicorp, N.A. Morgan Guaranty Trust Company of New York, Manufacturers Hanover Trust Company, and Bank America Corporation. But the interest rate may not exceed 14% or be less than 7%. If it cannot be computed, the rate is 12%.
Usury
182
____________ ________ cannot exceed 12% per annum, but the owner of a note which is payable to the bearer or by assignment may claim interest up to 12% per annum, even though the rate or discount is beyond 12% per annum interest or discount. The owner of a note which is payable to the bearer or is transferable by assignment may collect the whole amount, even though it may include a greater rate or interest than 12% per annum. However, the maximum rate stated in the note ~ 12% per annum from maturity, not from date of note.
Conventional interest
183
__________ from usury and prohibition of interest on interest include:
1. V.A. guaranteed and F.H.A. insured loans.
2. Wrap-around mortgage loans
3. Graduated payment mortgages
4. Owner-financed loans secured by mortgage on the immovable sold.
5. Loans for commercial or business purposes.
6. Loans covered by the Louisiana Consumer Credit Law.
7. Loans to corporations and partnerships.
Exemptions
184
_______ for _____ is forfeiture of the entire interest.
Penalty for usury
185
____ for ____ is similar to the common law "Contract for Deed" or "Installment Sale" or "Land Contract". a "____ for ____" is a contract to sell immovable property in which the purchase price is to be paid by the buyer to the seller in installments. Title to the property is retained by the seller until full payment is made. The buyer usually takes possession. If the buyer defaults on payment, the seller may cancel the ____ for ____ after forty-five (45) days' notice by filing such a notice in the conveyance records of the parish where the immovable property is situated.
Bond for Deed
186
An ________ is a contract in which the parties give to each other a thing, other than money. It is not a sale and rescission for lesion is generally not allowed.
exchange
187
A party may agree that he will not sell a thing without first offering it to another person. This right is called the ____ of _____ _______, which can be enforced by specific
performance. Unless otherwise agreed by the parties, the right must be exercised within 30 days and may not be granted for more than 10 year
right of first refusal
188
There are no ________ _____ paid to the State of Louisiana. Those paid to the
municipalities and parishes vary according to local ordinances that provide the tax rates. All tax rates are expressed as millages.
property taxes
189
______ _____ ___________ The Louisiana constitution provides that property shall be listed on the assessment rolls at its assessed value, which shall be a percentage of its market value. The
percentages are 10% for land, l0% for residential improvements, 15% for commercial buildings, l5% for electric cooperative properties (excluding land), 25% for public service properties (excluding land), and 15% for other property.
Market value assessments
190
___ _____ ___________ However, bona fide agricultural, horticultural, and marsh and timberlands are assessed at 10% of use value.
Use value assessments
191
Many types of property are exempt from taxes. The primary ________ of interest to
the person involved with residential properties is the homestead exemption. This is not to be confused with the homestead exemption from seizure by creditors. The ad valorem tax exemption
is $7,500.00 of assessed value, But the ________ does not extend to municipal taxes. A new owner, occupying his home, must apply to the assessor before April 15 for the year the _________ is claimed. Most parishes now provide for automatic renewal of the _________ so long as the
property remains a homestead.
exemption
192
Taxes are due when the tax rolls are filed by the local parish assessors. They are
delinquent if not paid by December 31 of each year, at which time penalties and interest begin to accrue. If not paid, the property will be sold at ___ ____ by the tax collector, the sheriff, or the city tax collector. There is no bidding. The property, regardless of its value, is sold for taxes, penalties, interest and costs due.
Tax sale
193
__________ within three (3) years is possible. After a ________ proceeding to confirm a tax title or five (5) years, the failure to comply with formalities cannot be challenged.
Redemption
monition
194
A _____ is a synallagmatic (bilateral) contract to which consent alone is sufficient and by which one party gives to the other the enjoyment of a thing at a fixed price. The existence of a _____
permits one person to reside on the land of another, but the ____ is not a real right. It is not classified as an immovable and does not have to be in writing, regardless of the term (length) of the _____.
lease
195
The ______ is the landlord.
lessor
196
The ______ is the tenant.
lessee
197
_______ _____ If the lessor (landlord) and the lessee (tenant) enter into a written agreement, it governs the relationship between them
written lease
198
______ _____ If the lease is not in writing, then the civil code articles will govern.
Verbal lease
199
Two kind of leases:
1
2
Lease for rent (non farm lease)
farm lease
200
The letting (renting) out of houses and movables, called _____ for ____.
lease for rent
201
The letting out of predial or country estates.
Farm lease
202
If no time is specified in the lease, the lease is a _____ to _____ lease. At least ten (10) days' notice before the expiration of the month is required to terminate it.
month to month
203
If a lease has expired and the lessee continues in possession for a week without opposition, the lease is presumed to have continued. The ten-day legal notice must be given before he can be compelled to vacate. But if it is a farm lease, and the farmer holds over a month without opposition, the lease shall
continue for a year.
Reconduction house/farm
204
_______ _________ The lessor (landlord) has a privilege on movables found on the premises, except for certain items exempt from seizure, even if the movables belong to a third party. The third party may claim them prior to judicial sale, however. If the movables have been removed from the premises, the lessor can have them seized in exercise of his privilege within fifteen (15) days of removal.
lessor's privilege
205
For failure to pay rent, the lessee can be expelled. If he has not waived notice, in writing, and the lease does not provide otherwise, the lessor must give five (5) days' notice to vacate. Upon filing ________ suit, the court will order the lessee to vacate, if the lessee is in default. Within three (3) days, if he does not vacate, the
court may order that he be expelled and the property cleared. Special laws apply to these proceedings. Action by the lessor to evict, without following these laws and without court order, may result in liability of the lessor to the lessee, regardless of the default of the lessee.
eviction
206
____ to ________ _______ Should the lessee furnish an advance deposit to secure any party of the lease, the lessor must return it upon termination of the lease within one (1) month, less any amount required to remedy a default or unreasonable wear to the premises. An itemized statement must be given to the lessee, accounting for the proceeds retained and giving the reasons for the retention. Should the lessee abandon the premises without notice or prior to termination, the lessor may retain the deposit without the itemizations. The tenant may recover actual damages or $200, whichever is greater, plus costs and attorney's fees for willful failure to comply with these provisions. No waiver of the lessee's rights concerning these provisions is valid.
Duty to minimize damages
207
________ of _______ The licensee should be aware that, if the lessor sells the leased premises during the term of a lease, the deposit should be turned over to the purchaser. The seller is then relieved of further liability regarding the deposit, and the buyer is then responsible. The buyer must honor the terms of the lease if the lease was recorded in the public records.
transfer of deposit
