Property Flashcards
common thing
owned by no one
can be freely used by everyone
public thing
thing owned by the state in its public capacity
private thing
things owned by private persons
owned by state in private capacity
subject to private use
navigable means
susceptible to commercial activity
river bed =
between ordinary low water marks
lake bed =
between ordinary high water marks
river banks =
privately owned by riparian land owner but subject to public use for non-commercial, incidental to navigation uses
alluvion
accretion of new sediment on bank of river.
belongs to riparian landowner
dereliction
receding of water from bank of river
belongs to riparian landowner
erosion
land that slips under water
belongs to state
avulsiono
identifiable movement of land due to convulsive movement of river
stays belonging to that land owner
private thing can become public by
by dedication: by a signed writing, by statutory dedication, by tacit dedication, or implied dedication
incorporeal thing =
thing that has no body and is comprehended solely by understanding
corporeal thing =
has a body and can be felt and touched
examples of incorporeals -
mineral lease
petitory and possessory actions
servitudes
immovables =
land
buildings
standing timber
other constructions permanently attached when unity of ownership exists
test for building vs other construction =
analyze cost + durability + purpose + prevailing notions of whether something is a building or not
(Seaways International test)
component parts test for a building=
things that serve to complete the same general type of building: commercial/industrial/residential
component parts test for other construction =
things that serve the principal, specific use of the construction
component part test that applies to both buildings and other constructions =
if removing the thing causes substantial damage to the building or other construction, then is component part
immovable only when unity of ownership between thing and land =
other constructions permanently attached
unharvested crops
ungathered fruits
thing can become immovable by __ of the owner
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
de-immobilization
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)
movable =
anything that is not an immovable
accession of fruits
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
accession to immovables
exists when debate about whether landowner or another person owns something built on the landowner’s land
in accession, if landowner ___, then separate ownership exists, period.
consented to the constructioin
in accession, if previous landowner consented, then can prove separate ownership against a third party successor in title only if ___
you recorded a document in the parish saying you retained separate ownership of the construction
in accession, when landowner’s consent expires, then
improver must remove the improvement and restore property to its original condition
in accession, to obtain ownership, landowner may
send writing saying he asserts ownership, after 90 days if no response, then he owns the thing at no cost
in accession, if attachment is an integral or component part of an immovable then
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
in accession, if improvement is made by possessor
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
in accession, if “improvement” is worthless
then dont apply accession rules, and landowner may have action for damages
transfer of ownership of immovables
must be in writing
must be recorded to have effect against third parties
transfer of ownership of movable
does not require writing
becomes effective at actual delivery against third parties
bona fide purchaser of movables doctrine
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
co-ownership effect on fruits =
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
co-ownership rights of use=
all co-owners have equal and co-extensive right of use
co-ownership expenses =
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
co-ownership right of abuse =
A co-owner can alienate, encumber, or leas, his share of ownership. Cannot alienate, encumber, or lease full ownership of the thing without consent
co-ownership right to make substantial improvements =
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.
partition exists in two forms
in kind
by licitation
a donor may impose a non-partition clause for __ years
5
co-owners may impose a non-partition clause on themselves
for __ years
15
voluntary partition rule of lesion =
co-owner must get at least 75% of the value of the property he is owed in voluntary partition
judicial partition =
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
predial servitude definition
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.
types of predial servitudes
natural
legal
conventional
a predial servitude may (2 yes/1 no)
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
enclosed estate legal servitude
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
conventional predial servitude created by
title or acquisitive prescription or destination of the owner
predial servitude title
must be written and recorded
ambiguity in title resolved in favor of servient estate
predial servitude acquisitive prescription
can only exist for apparent servitudes
predial servitude destination of the owner
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
rights of dominant estate regarding predial servitudes
right to make works necessary for the use of the servitude
must cause as little damage as possible to servient estate
prescription of nonuse of predial servitude
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
predial servitude extinguished by _____ destruction of ___ estate
total and permanent
servient or dominant
personal servitude
creates a real right in favor of a person
usufruct
a real right, to use and fruits, of limited duration, on the property of another
rights of usufructuary over consumable thing
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
rights of usufructuary over nonconsumable thing
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)
rights of usufructuary to trees
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
right of usufructuary regarding substantial improvements
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
usufruct over movables that are gradually impaiired by use
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
duties of the usufructuary
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)
usufructuary expressly granted right of disposition
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
usufructuary and leases default rule
if usufructuary not expressly granted right to dispositions, then leases terminate at termination of usufruct
duties of usufructuary and naked owner regarding repairs
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
default termination of usufruct
for natural person, at death
for juridical person, at dissolution or after 30 years
right of habitation =
the real right to live in the house of another. May only be granted to a natural person.
right of use =
looks exactly like a predial servitude but granted to person not estate
building restrictions
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
to establish building restrictions
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
to modify building restrictions
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
abandonment and prescription of building restrictions
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
possession definition
corpus plus animus
corpus is physical acts of use, enjoyment or detention
animus is the intent to possess as owner
precarious possessor definition
exercise of possession over a thing with the permission of the owner
termination of precarity of possession
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)
new law regarding possession and use of small part of neighbor’s property
neighbor may be allowing you to use it with implied permission, thereby making your possession precarious and barring acquisitive prescription
civil possession
corporeal possession plus time
constructive possession
corporal possession of a part of an immovable to which you have title establishes constructive possession within title limits
hierarchy of possession types
corpus > civil > older constructive > more recent constructive
occupancy definition
taking possession of a corpreal movable that belongs to no one
establishes ownership immediately
lost things
after 3 years, after exerting diligent effort to find owner, become owner
treasurre
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
possessory action =
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
acquisitive prescription of immovable - good faith elements
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.
acquisitive prescription of immovable - bad faith elements
30 years possession
thing susceptible of acquisition
acquisitive prescription of movable - good faith elements
3 years possession
act translative of ownership (written or oral)
good faith
thing susceptible of acquisition
acquisitive prescription of movable - bad faith elements
10 years possession
thing susceptible of acquisition
tacking
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)
boundary action
suit in which you go to court and ask the judge to fix a boundary between two continguous properties. The action is imprescriptible
conflict of law
apply louisiana law for immovables located within louisiana
apply law of state where property was acquired for movables
in a classification question, do analysis for:
- private, public, or common thing
- corporeal or incorporeal
- movable or immovable
component part analysis
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?
servient estate holder must show ___ or ___ to move servitude across land
that the original position of the servitude has become burdensome
OR
that its location prevents him from making useful repairs on his land
a precarious possessor who after the fact wants to claim acqusitive prescription
must have given actual notice to the owner who gave him permission to possess that he is now intending to possess as owner.
usufruct terminates by _____ destruction of___
complete and total destruction by accident or force majeure of the nonconsumable thing subject to usufruct
