Property Flashcards
Three types of classification (Property)
Common, public, and private
Two sub-classifications (Property)
moveable v. immovable
corporial v. incorporial
Common things
things that cannot be owned by anyone
Examples of common things
air, high seas
Public things
things owned by LA or public subdivisions in its public capacity
Examples of public things
beds of natural, navigable water bodies
Private things
things owned by private persons; things owned by the state or a political subdivision in a private capacity
Things that are always immovable
land and buildings
Seaways test
Test for “prevailing notions”
4 factors: (1) cost, (2) materials, (3) supplies, and (4) function.
Component parts of immovables are always
immovables
Test for component parts of immovables test
something is a component part of a building (which must be classified as a building under Seaway) if according to prevailing usages it serves to complete a building of this same general type
Examples of component parts of immovables
doors, cabinets, plumbing
Something is a component part of a building or an other construction if
its removable would cause substantial damage to the building/other construction or to the thing being removed
_____ will always be classified as immovable property
standing timber
things that are immovable if there is unity of ownership between the thing and the land
other constructions permanently attached
unharvested crops
ungathered fruits
Movables definition
anything not classified as immovable is classified as movable
Corporal property is
tangible property
Examples of corporal property
land, cash
Incorporal property is
intangible property
Incorporal property examples
intellectual property, legal rights
Other constructions permanently attached test, and when it applies
size (is it big?), is there a high degree of permanence?, is the thing integrated with the land?
test applies when the thing is owned by the same person who owns the land; if it meets the test for a construction permanently attached, then it is classified as an immovable
Possession is
the detention or enjoyment of a thing by a person or a possessor on his behalf
To acquire possession you need
corpus and animus
Corpus definition
some physical act on the property
Animus definition
an intent to possess the property as owner
Precarious possessor example
a renter
Precarious possessor definition
someone who possesses on behalf of someone else
Why are precarious possessors not in possession?
because they don’t have the requisite animus (lack intent to be owner)
How to protect possession
a possessory action
Elements of a possessory action
(1) possession at the time of disturbance
(2) quiet possession at the time of the disturbance, UNLESS evicted by fraud or force
(3) a disturbance in law or fact
(4) the possessory action is instituted within one year of the disturbance
Quiet possession definition
uninterrupted possession (there’s no question of possession). BUT there is an exception for fraud and force for public policy reasons
A disturbance in fact is
an eviction or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment
A disturbance in law is
the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right
Ownership refers to
the exclusive right to use, enjoy, and dispose of a thing
Ways to acquire ownership
acquisitive prescription
acquisition of ownership via accession
Acquisitive prescription of immovables; “10 year acquisitive prescription” requirements
10 year possession
of a thing susceptible to acquisitive prescription (a private thing)
good faith
just title
Good faith (Property-acquisitive prescription)
a reasonable belief, in light of objective considerations, that you are the owner
Just title defined
an act intended to cause legal consequences (juridical act)
must be real title-the title must be certain
translative title - if title were correct, it would be sufficient to transfer ownership
nearly valid title - it looks good on its face
it must be written
must be recorded
Acquisitive prescription of immovables; “30 year acquisitive prescription” requirements
30 years possession
susceptible to acquisitive prescription
Movables; 3 year acquisitive prescription
3 year possession
thing susceptible of acquisitive prescription (private property)
act translative of title (just title, minus written a recorded rules)
good faith
Movables; 10 year acquisitive prescription
10 year possession
susceptible to acquisitive prescription
Tacking, definition
the idea that you can add an ancestor’s time in possession to yours
Ancestors for the purposes of tacking
universal successor (people to take everything), particular successors (people who take limited things)
Universal successor
heirs, universal legatees (people who receive everything under a will or a percentage of everything), general legatees (people who receive the residue under the will or a percentage of the residue). Residue in a will: “any property omitted goes to ___.”
Particular successor
people who take limited things: buyers, transferees, donees, legatees of particular things
Universal successors must tack with
the ancestors defects
Accession defined
when one person owns a piece of immovable property, someone else comes along and adds something to that added property, who owns the added thing?
The questions for accession
who owns the added thing, if the person who added the thing is not the owner, can the person who added it be reimbursed for it, and who can demand removal of the thing
Accession, possessor rules (good faith)
a good faith possessor owns the fruits he has gathered, a good faith possessor does not own any products of the immovable, a good faith possessor does not own any improvement he makes to the immovable; the owner of the immovable owns the improvements made
Fruits (Property)
property produced by other property without causing diminution of the substance
Products (Property)
property produced by other property that cause diminution of the substance
Good faith possessor, removal of things
the owner of the immovable cannot demand removal of any improvement made to his immovable
Good faith possessor, reimbursement
the owner of the immovable is bound to keep the improvement and pay, at his option, the good faith possessor either: (1) the cost of the materials and workmanship, (2) the current value of the materials and workmanship, or (3) the enhanced value of the immovable property.
BUT if the enhanced value of the immovable is $0, the owner doesn’t have to pay the good faith possessor anything
Bad faith possessor, ownership
a bad faith possessor does not own the fruits he has gathered, any fruits gathered by a bad faith possessor must be returned to the owner of the immovable; a bad faith possessor does not own any products of the immovable; a bad faith possessor does not own any improvement he makes to the immovable; the owner of the immovable owns the improvements made
Bad faith possessor, removal
the owner of the immovable may demand demolition of the improvement at the expense of the bad faith possessor; the owner of the immovable may also receive any damages he has sustained from the improvement
Bad faith possessor, reimbursement
if the owner of the immovable does not demand demolition and removal of the improvement, he must pay the bad faith possessor either: (1) the current value of the materials and workmanship, or (2) the enhanced value of the immovable. Reimbursement is owed only if the improvement is a separate improvement (it can be separated from the immovable). If the owner of the immovable does demand removal and the bad faith possessor does not remove the improvement, no reimbursement if owed.
Bath faith possessor if the owner of the immovable does not demand demolition and removal of the improvement, he must pay the bad faith possessor either
(1) the current value of the materials and workmanship, or (2) the enhanced value of the immovable.
Bad faith possessor if the improvement is a separate improvement (it can be separated from the immovable).
reimbursement is owed
Bath faith possessor if the owner of the immovable does demand removal and the bad faith possessor does not remove the improvement
no reimbursement is owed
If a lessee puts an attachment onto leased property, who owns it?
the lessee owns the attachment.
If a lessee puts an attachment onto leased property, what can the owner of the property do?
Lessor can demand removal of the thing or lessor can take ownership of the thing without demanding removal.
Issues of reimbursement if lessor takes ownership of the attachment without demanding removal
The lessor owes the lessee the lesser of either the cost of the attachment or the enhanced valued of leased property.
Reimbursement if the lessor takes ownership after demanding removal (i.e., the lessee just won’t remove it),
The lessor owes the lessee nothing.
For an immovable thing to be transferred and that transfer be effective as between the parties, the transfer must be
In Writing
For an immovable thing to be transferred and that transfer be effective as to third parties, the transfer must be
The transfer must be recorded
For movables things, a transfer of movables is effective
upon delivery
Ownership is protected through
The petitory action
In a petitory action, if the defendant is in possession, then plaintiff must prove either
(1) that he purchased from a previous owner (which requires tracing back title to the sovereign to prove that every person in the chain of title was owner), or (2) the plaintiff owns the property via acquisitive prescription.
In a petitory action, if the defendant is not in possession, then plaintiff must prove
that he has better title to land, which generally means older title
For co-owners, the law presumes that
there is ownership in indivision
Ownership in indivision means
owners owe an equal share of co-owned property (presumption is rebuttable)
What percent of proceeds do co-owners get
Co-owners receive fruits of property in percentage of their co-ownership.
Regardless of their percentage of co-ownership, co-owners get
equal use of the co-owned property
Co-owners get reimbursed for
conservatory acts and ordinary maintenance.
Conservatory acts are
necessary steps for preserving the thing.
Co-owners must get the consent of their co-owners before making
Substantial improvements
If a co-owner makes a substantial improvement without the consent of his co-owners, and that improvement is consistent with the use of the property
the other co-owner(s) of the immovable is bound to keep the improvement and pay, at his option, the good faith possessor either: (1) the cost of the materials and workmanship, (2) the current value of the materials and workmanship, or (3) the enhanced value of the immovable property.
BUT if the enhanced value of the immovable is $0, the owner doesn’t have to pay the good faith possessor anything
If a co-owner makes a substantial improvement without the consent of his co-owners, and that improvement is not consistent with the use of the property
if the other co-owner(s) of the immovable does not demand demolition and removal of the improvement, he must pay the bad faith possessor either: (1) the current value of the materials and workmanship, or (2) the enhanced value of the immovable. Reimbursement is owed only if the improvement is a separate improvement (it can be separated from the immovable). If the owner of the immovable does demand removal and the bad faith possessor does not remove the improvement, no reimbursement if owed.
Transfer of a co-ownerships interest in co-owned property
Can do it, but it takes all co-owners to transfer the entire thing.
The loss of the thing subject to co-ownership will
will terminate the co-ownership.
Any co-owner can partition the thing subject to co-ownership at any time, though there can be an agreement to
not partition for up to 15 years.
If a court has to partition the co-owned property, first desire is to
do a partition in kind.
Partition in kind is
dividing the property up.
Partition in kind will be done if the thing can be
divided into equal or nearly equal lots and the total value of the lots is not significantly lower than the value of the property as a whole.
If a partition in kind cannot be done, then a court will
partition by licitation.
Partition by licitation is
selling the property and diving the proceeds of the sale based on the co-owners’ ownership interest.
A usufruct is
a real right of limited duration on the property of another person (a person we call the naked owner) which gives the beneficiary (who we call the usufructuary) the right to use and enjoy the fruits of the property subject to the usufruct.
A consumable is a thing that
can be consumed (e.g., water).
If the thing subject to a usufruct is consumable, then the usufructuary
has the right to consume the thing.
But, if the usufructuary’s usufruct is consumable, at the termination of the usufruct, the usufructuary must
pay the naked owner the value the thing had at the commencement of the usufruct or replace the thing with something of similar quality and quantity.
For a nonconsumable, the usufructuary has two main rights:
the right usus (to use the thing) and the right of fructus (to enjoy the fruits of the thing).
A usufructuary may use the thing but must act as
a prudent administrator.
The usufructuary may make improvements to the thing at his own expense, but
he must have written consent from the naked owner.
The usufructuary may make improvements to the thing at his own expense with the naked owner’s consent, but if s/he doesn’t not get the naked owner’s approval, the usufructuary may
get court approval to make improvements. The court will ask whether making the improvements is in line with being a prudent administrator.
Who must pay for ordinary repairs that arise during the course of the usufruct?
The usufructuary
All repairs that arise outside of the course of the usufruct are the responsibility of
the naked owner
Who must pay for extraordinary repairs that arise during the course of the usufruct?
The naked owner, unless the extraordinary repair is caused by the usufructuary’s fault.
Extraordinary repairs are
those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs.
Can the naked owner compel the usufructuary to make the repairs the usufructuary is responsible for?
Yes
Can usufructuary compel the naked owner to make the repairs the naked owner is responsible for?
No.
The usufructuary must pay all expenses that
are necessary for the preservation of the thing subject to the usufruct (e.g., water bill, the electric bill).
Fruits are
property produced by other property without causing diminution of the substance.
Natural fruits are
things like apples produced from apple trees or baby calves produced from cows.
Civil fruits are
things like rents produced from a house, cash dividends produced from stock.
For natural fruits, a usufructuary owns
all of the natural fruits that are severed during the usufruct.
For civil fruits, a usufructuary owns
all civil fruits that have accrued by the time the usufruct terminates, regardless of whether the civil fruits have been collected.
Tree farms are areas where
there are sustained yields of trees produced and chopped down on a planned schedule
For a tree farm, the trees are classified as
fruits and the usufructuary of a tree farm is entitled to the proceeds from the trees
Timberland is land that is
capable of producing timber in paying quantities
A usufructuary over timberland must
manage the timberland as a prudent administrator, which is a general rule for all usufructuaries.
The usufructuary may cut down the trees if:
Prudent to do so, and gets the proceeds of any timber operations that are derived from proper management.
Regular trees can be cut down by the usufructuary, but
only for his own personal use or for the cultivation or improvement of the land.
The right of abusus refers to:
The right of a reason to get rid of the thing in some form
If you sell your usufructuary right, that contract will terminate
when your usufruct terminates.
the usufructuary cannot do is alienate the actual thing subject to the usufruct unless
the right to alienate the property is expressly granted to him.
If the usufructuary has been granted the right to alienate the nonconsumable thing subject to the usufruct, and the usufructuary exercises that right, then
the usufructuary owes the naked owner the actual value of the thing at the time of alienation.
If the usufructuary has been expressly given the authority to donate the thing subject to the usufruct, then at the termination of the usufruct, the usufructuary
owes the naked owner the actual value the thing subject to the usufruct had at the time of the donation
If the thing subject to a usufruct is a corporeal movable that naturally deteriorates over time due to wear, tear, or use, then the usufructuary may
dispose of the thing without permission, but must do so as a prudent administrator.
If the usufructuary disposes of the corporeal movable
the usufructuary owes the naked owner the actual value of the thing at the time it was disposed of
If the usufructuary sells the thing for less than it is worth
the usufructuary still owes the actual value of the thing.
Who is subject to an 890 Usufruct?
if a person dies with a surviving spouse, descendants (children or grandchildren), and community property that is not dispensed with in a will, an 890 surviving spouse usufruct is created
The 890 usufruct operates just like a regular usufruct with a few exceptions.
(1) If the usufructuary is the biological parent of the naked owner(s), no security is required.
(2) An 890 usufruct terminates when the surviving spouse dies or remarries.
Termination of the Usufruct
(1) Death of the usufructuary (with a minor caveat – can lease to someone else, who can stay through their lease if the usufructuary dies), (2) Total and permanent loss of the property subject to the usufruct, (3) 10 years of nonuse (prescription of nonuse), (4) Confusion, (5) Abuse.
Abuse occurs if:
The usufructuary commits waste, alienates the thing without authority, neglects to make ordinary repairs, or abuses his enjoyment.
A right of use is
a personal servitude that confers specialized use less than full enjoyment over a thing. Generally transferable, unless contracted otherwise.
A right of habitation is
a real right to dwell in someone else’s house. Non-transferrable.
A predial servitude is:
a charge on a serviant estate for the benefit of a dominant estate
Predial servitudes run
with the land.
When a land owner sells her property, any predial servitude benefitting or burdening her property
runs with the property; i.e., the person who buys the house gets the same benefit or burden.
Servient estate is
the estate with the burden.
Dominant estate is
the estate with the benefit.
Natural predial servitudes are
things that arise from natural situations.
EXAMPLE: Servitude of drainage or running waters.
A servitude of drainage says that a servient estate is
bound to accept the waters that naturally drain from the dominant estate.
(1) The servient estate cannot do anything to prevent the drainage of water.
(2) The dominant estate cannot do anything to make the flow of water more burdensome.
Legal predial servitudes are
those servitudes imposed by law.
Louisiana’s Civil Code states that the owner of an enclosed estate may
claim a right of passage over neighboring property to access the nearest public road. As a general rule, the property owner claiming the right of passage (the dominant estate) must pay the neighbor over whose property he is passing (the servient estate) for that passage. If a person is enclosed upon through partition or alienation and there was a previously exercised right of passage, then the enclosed estate receives that right of passage gratuitously (i.e., the dominant estate does not have to pay for the right of passage).
Article 667 Nuisances
Nuisances that cause damage or deprive a neighbor of enjoying his property are always actionable.
Obtaining damages for a Article 667 Nuisance
1) Neighbor causing the nuisance knew or should have known he would cause damage.
2) Neighbor causing the nuisance could have prevented the damage by exercising reasonable care.
3) Neighbor causing the nuisance failed to exercise reasonable care.
Article 669 Nuisances
Nuisances that create an “inconvenience” for neighbors are actionable.
(a) Whether something is an inconvenience is determined by rules of the police and customs of the place.
(b) Damages can be obtained if the gravity of the harm suffered is greater than the social utility of the activity being performed.
Article 668 Nuisances
Some activities that may cause an inconvenience are not actionable. If something is just a mere inconvenience (i.e., does not rise to the level of an article 669 inconvenience), then it is not actionable.
Conventional predial servitudes are created
by juridical act, destination of owner, or acquisitive prescription.
Juridical act
An act intended to cause legal consequences.
Destination of owner
If there is an estate and it is divided into two, and there is what would be an apparent predial servitude running over the land if the estate was owned by separate individuals, then when the land is divided the predial servitude is created by “destination of owner.”
Apparent servitude is
a servitude visible by exterior signs.
Rights of the dominant estate and the servient estate
The dominant estate has the right to use the servitude and be free of interference from the servient estate.
(2) The servient estate must not be required to do something. There can be no affirmative obligations for the servient estate.
predial and personal servitudes terminate when
(1) Total and permanent loss of the property subject to the property, (2) 10 years of nonuse (prescription of nonuse), (3) Confusion.
Building restrictions are:
Charges imposed by the owner of immovable property pursuant to a general plan that governs building standards, uses, and improvements.
Can building restrictions contain affirmative obligations?
Yes.
To have a building restriction, it must
be a general plan, so everyone (or almost everyone) in the neighborhood needs to be subject to the same restrictions.
When a building restriction and a zoning ordinance conflict, which takes effect
the first in time.
a building restriction can be created only through
juridical act, which must be in writing; to affect third parties, it must be filed in the public registry.
To amend or terminate a building restriction:
(1) look to the document creating the restriction. If it does not say how to terminate, then:
a. If the restriction has been in place for less than 10 years, then you need all of the people subject to the building restriction to agree to terminate or amend it.
b. If the restriction has been in place for more than 10 years, you need at least 2/3 of the owners affected and at least 2/3 of land area affected.
c. If the restriction has been in place for 15 years or more, you need more than 1/2 of the land area affected.
After two years of a noticeable violation of a building restriction:
that particular restriction being violated is lifted as to that particular property who is doing the noticeable violation.
If there is a violation of a building restriction, the remedies include:
a. Injunctions (mandatory injunction if an affirmative building restriction violated; prohibitory injunction if a negative building restriction violated)
b. Sue the violators for damages
Building restrictions may be enforced by anyone subject to the building restrictions or by the homeowners or neighborhood association.
