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Code I > Property > Flashcards

Property Flashcards

1
Q

common thing

A

owned by no one

can be freely used by everyone

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2
Q

public thing

A

thing owned by the state in its public capacity

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3
Q

private thing

A

things owned by private persons
owned by state in private capacity
subject to private use

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4
Q

navigable means

A

susceptible to commercial activity

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5
Q

river bed =

A

between ordinary low water marks

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6
Q

lake bed =

A

between ordinary high water marks

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7
Q

river banks =

A

privately owned by riparian land owner but subject to public use for non-commercial, incidental to navigation uses

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8
Q

alluvion

A

accretion of new sediment on bank of river.

belongs to riparian landowner

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9
Q

dereliction

A

receding of water from bank of river

belongs to riparian landowner

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10
Q

erosion

A

land that slips under water

belongs to state

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11
Q

avulsiono

A

identifiable movement of land due to convulsive movement of river
stays belonging to that land owner

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12
Q

private thing can become public by

A

by dedication: by a signed writing, by statutory dedication, by tacit dedication, or implied dedication

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13
Q

incorporeal thing =

A

thing that has no body and is comprehended solely by understanding

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14
Q

corporeal thing =

A

has a body and can be felt and touched

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15
Q

examples of incorporeals -

A

mineral lease
petitory and possessory actions
servitudes

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16
Q

immovables =

A

land
buildings
standing timber
other constructions permanently attached when unity of ownership exists

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17
Q

test for building vs other construction =

A

analyze cost + durability + purpose + prevailing notions of whether something is a building or not
(Seaways International test)

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18
Q

component parts test for a building=

A

things that serve to complete the same general type of building: commercial/industrial/residential

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19
Q

component parts test for other construction =

A

things that serve the principal, specific use of the construction

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20
Q

component part test that applies to both buildings and other constructions =

A

if removing the thing causes substantial damage to the building or other construction, then is component part

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21
Q

immovable only when unity of ownership between thing and land =

A

other constructions permanently attached
unharvested crops
ungathered fruits

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22
Q

thing can become immovable by __ of the owner

A

declaration
must:
have unity of ownership between the thing (machinery, equipment) and the owner,
must be actually placed on the immovable and used for its service and improvement, and
a declaration of immovability must be filed in the parish records

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23
Q

de-immobilization

A

by damage
or
by detachment or removal
(note: to detach, no third party interest may exist; except when detached and sold to innocent third party then detachment and sale stands)

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24
Q

movable =

A

anything that is not an immovable

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25
Q

accession of fruits

A

good faith possessor keeps gathered fruits and is reimbursed expenses for ungathered fruits

bad faith possessor gets reimbursement for gathered fruits, no rights to ungathered fruits

note: natural fruits right devolves at detachment, civil fruits accrued day by day

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26
Q

accession to immovables

A

exists when debate about whether landowner or another person owns something built on the landowner’s land

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27
Q

in accession, if landowner ___, then separate ownership exists, period.

A

consented to the constructioin

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28
Q

in accession, if previous landowner consented, then can prove separate ownership against a third party successor in title only if ___

A

you recorded a document in the parish saying you retained separate ownership of the construction

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29
Q

in accession, when landowner’s consent expires, then

A

improver must remove the improvement and restore property to its original condition

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30
Q

in accession, to obtain ownership, landowner may

A

send writing saying he asserts ownership, after 90 days if no response, then he owns the thing at no cost

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31
Q

in accession, if attachment is an integral or component part of an immovable then

A

the integral or component part belongs to the owner of the immovable.

however, if owner consented to its installation/construction/addition then:

installer may remove attachment, but must restore the immovable to its former condition OR

if not removed upon demand, owner of immovable may have them removed at installer’s expense OR

may pay to keep them: either (1) current value of materials and workmanship of (2) enhanced value of his immovable

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32
Q

in accession, if improvement is made by possessor

A

good faith possessor = owner cannot compel removal. owner must keep the improvement and pay either (1) original cost of materials and workmanship, (2) current value of materials and workmanship or (3) enhanced value of the immovable

bad faith possessor = owner can demand demolition/removal at improver’s expense OR keep the improvement and pay either (1) current value of workmanship/materials or (2) enhanced value of the immovable

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33
Q

in accession, if “improvement” is worthless

A

then dont apply accession rules, and landowner may have action for damages

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34
Q

transfer of ownership of immovables

A

must be in writing

must be recorded to have effect against third parties

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35
Q

transfer of ownership of movable

A

does not require writing

becomes effective at actual delivery against third parties

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36
Q

bona fide purchaser of movables doctrine

A

When a good faith purchaser bought something that was lost or stolen from a merchant who customarily sells those things – then the good faith purchaser must return the thing, but is reimbursed by the true owner the price they paid for the object

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37
Q

co-ownership effect on fruits =

A

To be divided among co-owners, in proportion to their share
If one of co-owners does work to create fruits, he may deduct his expenses but not labor costs, before sharing with co-owner/s

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38
Q

co-ownership rights of use=

A

all co-owners have equal and co-extensive right of use

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39
Q

co-ownership expenses =

A

necessary expenses and ordinary maintenance expenses are shared by co-owners.
one who pays is due reimbursement from co-owners
right to reimbursement may be limited by the value of that co-owner’s exclusive use of the thing

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40
Q

co-ownership right of abuse =

A

A co-owner can alienate, encumber, or leas, his share of ownership. Cannot alienate, encumber, or lease full ownership of the thing without consent

41
Q

co-ownership right to make substantial improvements =

A

must have consent of all co-owners. if not:

if improvements consistent with use of property = follow accession good faith rules = cannot demand demolition, must pay: cost of M/W, current value of M/W, or enhanced value of immovable.

if improvements not consistent with current use of property OR done over express dissent, then follow accession bad faith rules = may demand demolition at improvers expense OR pay current value of M/W or enhanced value.

42
Q

partition exists in two forms

A

in kind

by licitation

43
Q

a donor may impose a non-partition clause for __ years

A

5

44
Q

co-owners may impose a non-partition clause on themselves

for __ years

A

15

45
Q

voluntary partition rule of lesion =

A

co-owner must get at least 75% of the value of the property he is owed in voluntary partition

46
Q

judicial partition =

A

must partition in kind if available (means that the property can be divided into lots AND the value of the sum of lots is not substantially less than the property as a whole)
if not, partition by licitation

47
Q

predial servitude definition

A

is a charge on a servient estate for the benefit of a dominant estate
runs with the land and is inseparable from the land itself.

48
Q

types of predial servitudes

A

natural
legal
conventional

49
Q

a predial servitude may (2 yes/1 no)

A

give the owner of a dominant estate the right to do something on a servient estate
prevent a servient estate from doing something on his own estate
MAY NOT force a servient estate to do something on his own estate

50
Q

enclosed estate legal servitude

A

created when an estate has no access to a public highway or utility

must take shortest and least injurious route over servient estate’s land

once servitude has been fixed, only servient estate may move the location - and then at his expense and only if equally convenient to dominant estate

if enclosed estate enclosed himself by sale, then no right to servitude

if enclosed estate enclosed by partition in kind, then gets servitude for free

51
Q

conventional predial servitude created by

A

title or acquisitive prescription or destination of the owner

52
Q

predial servitude title

A

must be written and recorded

ambiguity in title resolved in favor of servient estate

53
Q

predial servitude acquisitive prescription

A

can only exist for apparent servitudes

54
Q

predial servitude destination of the owner

A

when one owner owned both properties, and used one as if it were the servient estate, then when he sells that servient estate, the servitude is created by operation of law
only for apparent servitudes

55
Q

rights of dominant estate regarding predial servitudes

A

right to make works necessary for the use of the servitude

must cause as little damage as possible to servient estate

56
Q

prescription of nonuse of predial servitude

A

prescribes by 10 years of nonuse for conventional servitudes
for affirmative servitude, prescriptive period reset with each use
for negative servitude, prescription runs from violation

use by one co-owner sufficient

partial use keeps whole servitude in effect

57
Q

predial servitude extinguished by _____ destruction of ___ estate

A

total and permanent

servient or dominant

58
Q

personal servitude

A

creates a real right in favor of a person

59
Q

usufruct

A

a real right, to use and fruits, of limited duration, on the property of another

60
Q

rights of usufructuary over consumable thing

A

the usufructuary becomes owner of the consumable
may consume, alienate, or encumber them
at termination of the usufruct: must pay naked owner the value of the consumed thing, or replace them with like things of similar quality and quantity

61
Q

rights of usufructuary over nonconsumable thing

A

usufructuary has the right to possess the nonconsumable things and derive the utility, profits and advantage they may produce.

obliged to use them as a prudent administrator
must deliver them to the naked owner at termination of the usufruct

if illegally disposed of thing, then usufruct attaches to the money she receives for the property (and duty to repay at termination of UFT)

62
Q

rights of usufructuary to trees

A

when usufruct is over a timberland, then usufructuary may cut trees and retain sale price of timber, if that is the action of a prudent administrator of the timberland

63
Q

right of usufructuary regarding substantial improvements

A

may not make substantial improvements without naked owner’s written consent
if NO refuses to consent, then usufructuary has right to go to court, but must show that the improvement is that of a prudent administrator

64
Q

usufruct over movables that are gradually impaiired by use

A

then, usufructuary can dispose of that movable, as long as he acts as a prudent administrator
if sells this property, then has usufruct over proceeds of sale
if he gets less than the value of the movable at sale, owes naked owner the difference at termination of usufruct

65
Q

duties of the usufructuary

A

inventory
security (except 890 usufruct, owes security in amount of value of the property subject to usufruct - unless NO is not child of surviving spouse or is forced heir, in which case can get security)
care for property as prudent administrator
repairs
periodic charges (taxes)

66
Q

usufructuary expressly granted right of disposition

A

then the usufructuary can bind the naked owner in a lease beyond the term of the usufruct. however, may owe naked owner if that lease diminished value of the property

67
Q

usufructuary and leases default rule

A

if usufructuary not expressly granted right to dispositions, then leases terminate at termination of usufruct

68
Q

duties of usufructuary and naked owner regarding repairs

A

ordinary repairs are duty of usufructuary

naked owner can compel usufructuary to make these repairs

ordinary repairs are those other than extraordinary repairs

extraordinary repairs are those that require the reconstruction of the whole or a substantial part of the property – then these owed by naked owner

naked owner cannot be compelled to make these

usufructuary may make them and require reimbursement at termination of the usufruct

69
Q

default termination of usufruct

A

for natural person, at death

for juridical person, at dissolution or after 30 years

70
Q

right of habitation =

A

the real right to live in the house of another. May only be granted to a natural person.

71
Q

right of use =

A

looks exactly like a predial servitude but granted to person not estate

72
Q

building restrictions

A

create real rights, and are property arrangements that impose charges on property

may impose affirmative duty

lose against conflicting zoning, but can impose additional burdens beyond zoning

73
Q

to establish building restrictions

A

created by owner of immovable by juridical act (usually developer)
or unanimous consent of affected lot owners
or if HOA membership required, then by 3/4 of owners

74
Q

to modify building restrictions

A

after 15 years, need 1/2 of affected owners
after 10 but less than 15 years, need 2/3 of owners
less than 10 years, need unanimity

if HOA membership required, then modify to make more onerous with 2/3 of owners
if HOA members required, then make less onerous with only 1/2 of owners

75
Q

abandonment and prescription of building restrictions

A

If individual lot violates the restrictions, then within 2 years, that lot itself is free of suit for that particular building restriction

over time, if a substantial number of violations have been allowed, we can say that a particular restriction has been abandoned

76
Q

possession definition

A

corpus plus animus

corpus is physical acts of use, enjoyment or detention

animus is the intent to possess as owner

77
Q

precarious possessor definition

A

exercise of possession over a thing with the permission of the owner

78
Q

termination of precarity of possession

A

by actual notice from possessor to owner (oral or written)

if co-owner, then by overt and unambiguous acts sufficient to give notice
(acquisition and recordation of title sufficient)

79
Q

new law regarding possession and use of small part of neighbor’s property

A

neighbor may be allowing you to use it with implied permission, thereby making your possession precarious and barring acquisitive prescription

80
Q

civil possession

A

corporeal possession plus time

81
Q

constructive possession

A

corporal possession of a part of an immovable to which you have title establishes constructive possession within title limits

82
Q

hierarchy of possession types

A

corpus > civil > older constructive > more recent constructive

83
Q

occupancy definition

A

taking possession of a corpreal movable that belongs to no one
establishes ownership immediately

84
Q

lost things

A

after 3 years, after exerting diligent effort to find owner, become owner

85
Q

treasurre

A

a thing hidden in another thing, for so long that true owner cannot be determined
own if found in own property
1/2 each to owner of thing and finder

86
Q

possessory action =

A

when plaintiff is in possession of an immovable but is being disturbed. must prove:
possession of the immovable at the time of the disturbance
quiet and uninterrupted possession for more than one year immediately prior to the disturbance
disturbance in fact or law
within prescription of one year from date of disturbance

87
Q

acquisitive prescription of immovable - good faith elements

A

10 years possession
good faith
just title
thing susceptible of acquisition:

good faith = actual (subjective) and reasonable (objective) belief of ownership

just title = act translative of ownership, written, valid in form, and recorded.

88
Q

acquisitive prescription of immovable - bad faith elements

A

30 years possession

thing susceptible of acquisition

89
Q

acquisitive prescription of movable - good faith elements

A

3 years possession
act translative of ownership (written or oral)
good faith
thing susceptible of acquisition

90
Q

acquisitive prescription of movable - bad faith elements

A

10 years possession

thing susceptible of acquisition

91
Q

tacking

A

particular successors may tack when both current and ancestor were in good faith

universal successors inherit the faith-ness of their ancestor

must have a juridical link to tack unless boundary tacking (possession to visible boundary)

92
Q

boundary action

A

suit in which you go to court and ask the judge to fix a boundary between two continguous properties. The action is imprescriptible

93
Q

conflict of law

A

apply louisiana law for immovables located within louisiana

apply law of state where property was acquired for movables

94
Q

in a classification question, do analysis for:

A
  • private, public, or common thing
  • corporeal or incorporeal
  • movable or immovable
95
Q

component part analysis

A

are they so incorporated into the building that they have become integral parts of the building? (construction raw materials)
are they attached and considered to complete a building of the same general type?
would their removal cause substantial damage?

96
Q

servient estate holder must show ___ or ___ to move servitude across land

A

that the original position of the servitude has become burdensome
OR
that its location prevents him from making useful repairs on his land

97
Q

a precarious possessor who after the fact wants to claim acqusitive prescription

A

must have given actual notice to the owner who gave him permission to possess that he is now intending to possess as owner.

98
Q

usufruct terminates by _____ destruction of___

A

complete and total destruction by accident or force majeure of the nonconsumable thing subject to usufruct

Code I (3 decks)

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