Property and Acquisitive Prescription

Question 1

LA Property rights (3 Dimensions)

Answer 1

Common, public, and private – ownership

Corporeal vs. incorporeal – touch/feel

Moveables vs. immovable – ease of movement

Every “thing” has to be subjected to each of these 3 categorizations

Question 2

Ownership

Answer 2

Common, Public, and Private

“Common” things

– those incapable of being owned by anyone – the air and the high seas

“Public” things

– things that are vested in the state or a political subdivision in a public capacity. These can be used by the public for the public benefit.

i. Not everything owned by the state is “public”.
ii. These things are inalienable as long as they remain public.
iii. The Code lists:

1. Natural navigable waters
2. Territorial seas and seashores
3. Highways (have to be dedicated to the public)
4. Public squares

iv. For example, if state tries to sell a riverbed, it is not permissible

“Private” things

– these are owned by private person or by the state or political subdivision in that governmental unit’s private capacity (ex; state cars)

Question 3

Bodies of Water

Answer 3

Natural navigable waters - public

i. Navigable waters, if natural, are owned by the state and are free to all. Navigable canal – manmade?
ii. Navigability means that the water is free to be used for commercial traffic. If it is navigable in fact, it is navigable in law.

Territorial seas and seashores - public

i. Louisiana claims out to 3 miles of the Gulf of Mexico.
ii. Includes Lake Pontchartrain and “arms of the sea” – small, irregularly shaped bodies of water that are in the vicinity of the open Gulf.
iii. Seashores – “space of land over which the waters of the sea spread during the highest tide of the winter season” (high water mark test)
iv. A non-navigable tideland where there is indirect tidal overflow is not seashore, so if not navigable, not public.

Rivers and Riverbeds

i. If body is an inland navigable river, it is public.
ii. The state owns the riverbed, but the ownership extends only to the ordinary low water mark. (low water mark test)
iii. The land between ordinary high and low water marks is the “bank”. Riverbanks are private. The bank is subject, however, to certain limited public uses related to the navigational uses of the river (mooring, anchoring, boating when river is high).
1. No right of the public to cross land adjacent to the river (riparian land) to get to the bank, have to get there by the river.
iv. To determine if it’s a river, look at the shape, size of body of water. Compare width to those waters that flow into it, depth, and current. Look to the historical designation on maps.

Navigable Lakes, Ponds, etc.

i. Still public if navigable. State’s ownership extends to the ordinary high water mark. Land uncovered by low water is still a public thing.

Changes Over Time to Bodies of Water

i. Changes Over Time
1. Alluvian and Dereliction – creates new low water marks in middle of river, both result in state’s loss of ownership of bank
a. Alluvian – sedimentary deposits that build up as water flows. For river, the riparian owner gains ownership when low water mark shifts as a result of alluvian
b. Dereliction – successive and imperceptible receding of water. Land previously on the state’s side of low water mark is not permanently uncovered and is on riparian side.
2. Erosion – adjacent land is subsiding, low water mark shifts inland, state gains ownership of that portion of the bank
ii. Evulsion – sudden action where land moves, owner can make a claim for ownership if made in a year
iii. If river changes course, those who lose the land can take from the riverbed in a proportion to that lost.

Question 4

Roads and Highways

Answer 4

Can be public or private, depends on the manner of creation

If created with public money and dedicated to public, they are public

If created with private money and never dedicated to public, they are private.

If created with private money, but dedicated to public use, they are public! 4 ways to dedicate to public use:

i. Dedication – within purview of donor to either make the road public or to also donate the land under the road for public use
1. Statutory dedication – occurs when developer creates subdivision, required to have roads by statute. Recordation of map of subdivision dedicates roads to public use.
2. Tacit dedication – also statutory. Private road, but citizens who own it permit governmental entity to maintain road for 3 years. After 3 years it becomes dedicated to public use.
ii. Implied Dedication – Implied contract; if private person creates road, public uses road, and no effort made to stop public use, an ‘offer to public use’ is made which is accepted. Creates continuous public right of use.

Question 5

Corporeals and Incorporeals

Answer 5

Incorporeals – Legal rights and legal actions are incorporeal.

i. Right to extract minerals from someone’s land = incorporeal

Corporeal things are those that can have a “body” – land, in particular

What is the right that applies to the corporeal or incorporeal?

For incorporeals, look to see what the object of the right is.

i. If right of action applies to an immovable, it’s an incorporeal immovable. (For example, mineral servitude and mineral leases)
ii. Rights and actions that apply to moveables are incorporeal moveables. Usufructs over vehicles are incorporeal moveables, for instance.
iii. Juridical persons (corporation or partnership) – moveable, regardless of what “it” may own
1. X is shareholder of Y Corp, whose primary asset is Blackacre. X’s interest is an incorporeal moveable. Doesn’t matter that Y owns immovable property. (Y’s interest in Blackacre is immovable.)
iv. Trusts – Trusts are not legal entities, they are relationships, right passes between persons in trust.

Question 6

Movables and Immovables (Generally)

Answer 6

Scope of the transfer or encumbrance of a ‘thing’ is going to include its component parts. (Broader than fixtures rule in common law.)

Rules of acquisition (writing requirement)

Pure race public records doctrine applicable to immovable – transfers and encumbrances are immovable, but require recordation to apply to third parties

Default category is moveable.

Question 7

Things that are Always Immovables

Answer 7

Things that are always immovable:

1. Land and its component parts. (Code Article 462). Component parts of land include buildings other constructions, standing timber, and ungathered crops, only “when they belong to the owner of the ground.” (Civil Code 463)
   a. If separate ownership of a building, then that building is not a component part of the land.
2. Buildings
   a. Where there is separate ownership of underlying land and the building, building is a separate immovable (Art 464)
   b. When there is unity of ownership, the building is still an immovable, but is a component part of the tract of land.
   c. Critera of “building” from PHAC case – to be inhabited by people, cost, permanence, and prevailing notions of ‘building.’
   i. Built on soil, completeness not required.
3. Timber
   a. Standing timber is always an immovable. Where separate ownership from ground, it’s immovable but not component part. Where unity of ownership, immovable and component part.
   b. If separate ownership, landowner can compel the timber owner to remove it in a reasonable time.
   c. Severed timber is a moveable.

Question 8

Things That are Sometimes Moveable, Sometimes Not

Answer 8

1. “Other structures permanently attached to the ground”
   a. Construction other than a building has to be permanently attached (water tower, underground pipe, billboard in cement)
   b. If unity of ownership, it is a component part and is an immovable.
   c. If no unity of ownership between the construction and the land, it is a moveable.
2. Unharvested Crops and Ungathered Fruits
   a. If unity of ownership, it is a component part and is an immovable. If no unity of ownership between the crop and the land, it is a moveable.
3. *Component Parts* (often-tested)
   a. Integral Parts of Land, Building or Other Construction
   i. Things incorporated into a tract of land, a building, or other construction such that it becomes an integral part is a component thing. (Art 465)
4. Building materials, topsoil, bricks, etc.
5. They are moveables until actually incorporated into the land or construction.
   b. Component Parts of Buildings (Attachments)
   i. Art 466, para 1: “Things that are attached to a building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use, are component parts”
6. Plumbing, heating, cooling, electrical, etc.
   ii. “Building of the same general type” = not the specific use of building, just general (residential, commercial, industrial).
7. Ex, nuclear camera in hospital. Not required to complete a ‘commercial building’, not component.
   iii. “Prevailing Usages” – what people actually do, can change over time
   iv. Some attachment to building is required, but doesn’t have to be permanent. (Plugging into the wall is not sufficient.)
   c. Things That Serve The Principal Use of Other Construction (Attachments to Non-Buildings)
   - Art 466, para 2: “Things that are attached to a construction other than a building and that serve its principal use are its component parts”
   - Ex: Water tower – valves, piping, access ladders serve principal use and are attached, cell phone tower on top does not serve principal use.
   - Where construction is not owned by landowner, the construction is moveable, ‘component parts’ are called ‘accessories’ instead (Art 508, not 466, but same test)
   d. Things That Cannot Be Removed Without Substantial Damage to Building or Other Construction
   i. Art 466, para. 3: “Other things are component parts of a building or other construction if they are attached to such a degree that they cannot be removed without substantial damage to themselves or the building or other construction.”
   ii. Permanence – If a thing meets these criteria, it is a component part regardless of the other 2 tests!
8. Immovables by Declaration
   a. Owners can ‘declare’ and register things like appliances, farm equipment, and machinery as component parts of an immovable. (Art. 467) Four-part requirement:
   i. Unity of ownership between immovable and declared immovable
   ii. Immovable must not be a private residence
   iii. Component part must be placed on immovable for its ‘service and improvement’
   iv. Declaration filed for registry in conveyance records of parish where the immovable is located.

Question 9

Deimmobilzation of a Component Part

Answer 9

A component part of an immovable can be converted to a movable (deimmobilized). Art. 468

a. Damage – when a component part is so damaged/deterioriated that it can no longer serve the use of the immovable, it is deimmobilized
i. Materials separated for repair with the intention to return are not deimmobilized.
b. Transfer and Delivery
i. Component part can be deimmobilized when the owner of the immovable:
1. Executes an act transferring ownership (physically removes component), and
2. Delivers the component part to an acquirer, and,
3. The acquirer is in good faith.
c. Detachment and Removal – when in the absence of rights of third persons, the owner of the immovable detaches or removes the component part (with no intention of repair)

Question 10

Moveables

Answer 10

Anything that is not immovable is moveable. (Art. 475)

Movables by Anticipation

1. Unharvested crops or ungathered fruits owned or encumbered by a security interest held by someone other than the landowner are “moveables by anticipation” (Art 474)

Question 11

Accession

Answer 11

Generally – ownership of a thing includes by accession everything that is produced by that thing or is united with it, subject to exceptions (Art 483)

Fruits (Thing Derived From Another Thing That Doesn’t Diminish Substance)

i. Owners - Owners of a thing acquires the ownership of its natural and civil fruits in the absence of the rights of third person
1. Natural fruits (calves, etc.) – one who is entitled to natural fruits during a particular period acquires ownership of any natural fruits gathered during that period
2. Civil fruits (revenues, rentals) – one who is entitled to civil fruits during a particular period acquires ownership of any civil fruits that accrue during this period.
ii. Possessor’s Rights to Fruits and Products
1. “Possessor” = adverse possession
2. Good Faith Possessor – a person in good faith who possesses by virtue of an active of translative of ownership who does not know of defects in title. (no reason to doubt ownership)
a. Ceases to be in good faith when defects are made known or an action instituted for recovery by the owner
b. A good faith possessor owns the fruits he has gathered.
c. A good faith possessor does not own ungathered fruits, but is entitled to reimbursement of expenses for ungathered fruits.
3. Bad Faith Possessor – a possessor in bad faith must restore the fruits he has gathered subject to a claim for expenses. No rights to ungathered fruits at all.

Products

i. Unlike fruits, products result in the diminution of a thing (non-renewable resources, such as oil and gas pre-extraction)
ii. Products belong to the owner.
iii. A possessor in good faith only has the right to reimbursement for expenses for products derived from a thing.

Question 12

Accession in Relation to Immovables

Answer 12

Generally – Ownership of a tract of land carries with it the ownership of everything that is directly above or under it.

Ownership

i. Ownership of Improvements – code permits separate ownership of improvements (buildings, other constructions permanently attached to ground, standing timber, and unharvested crops/ungathered fruits)
1. Proving Separate Ownership:
a. Claim Against Owner of Ground – builder must prove that the landowner consented to the improvements. If landowner did not consent, then improvement belongs to the landowner. (Oral agreement is OK)
b. Claim Against Third Party – builder must prove (1) consent of original landowner and (2) timely filed instrument evidencing separate ownership in conveyance records of parish in which immovable located
i. Third party = transferee or buyer
ii. Third persons relying on public records entitled to assume that things are component parts of ground.
2. Right of Separate Owner to Remove Improvements
a. Right to Remove – when separate owner no longer has the right to keep them on land of another, he may remove them subject to obligation to restore property to former condition
b. Failure to Remove – if separate owner does not remove within 90 days after written demand, landowner may acquire ownership after giving written notice, and owes nothing.
c. Between Spouses – when buildings, other constructions permanently attached, or plantings are made on separate property of a spouse with community assets or separate assets of other spouse, and when improvement made on community property with separate assets, owner of the ground owns the improvement
3. Ownership of Integral and Component Parts
a. Unlike “improvements”, other component and integral parts (Art 465/466) belong to the owner of the immoveable.
i. Installer may remove, subject to obligation of restoring the immovable
ii. If installer does not remove after demand, owner of immovable may have them removed at installer’s expense or pay and keep.

Question 13

Claims for Accession of Immovables

Answer 13

One who has lost ownership to owner of an immovable may a claim (subject to public records doctrine if third party)

Construction by Landowner With Materials of Other – when owner of immovable makes construction or plaintigs with materials of another, he may retain them regardless of good/bad faith if reimburse the owner of materials to current value and repairing any injury caused

Construction by Possessor

a. Good faith possessor – where construction/improvement made by P in good faith, owner of immovable may not demand demolition and removal. Bound to keep them and at option may pay to possessor either:
i. Cost of materials and worksmanship
ii. Current value, or
iii. Enhanced value of the immovable
b. Bad faith possessor – where construction/improvement made by bad faith possessor, owner of immovable may:
i. Demand demolition and removal at expense of possessor and claim damages for injury, or
ii. Keep them and pay at owner’s option either current value of materials and worksmanship or enhanced value of the immovable
c. Rights of Landowner Where Possessor Did Not Improve
i. If possessor did not improve the land, the landowner has action for damages
ii. Might also have a trespass action in tort.

Question 14

Transfer of Ownership of Immovables

Answer 14

Ownership transferred between parties when they have ‘confected a written agreement that transfers ownership’.

Only effective against third parties when the instrument is filed in the conveyance of the office of the parish where the immovable is situated.

Question 15

Transfer of Ownership of Movables

Answer 15

Generally – moveable is transferred voluntarily by contract between owner and transferee that transfers ownership

Effective against third parties when possession of moveable has been delivered to the transferee.

1. Effect on subsequent transfers – If X sells moveable to Y but does not delivery, then X sells to Z and does deliver, Z owns if in good faith because X->Y transfer was not effective
2. Effect on creditors – If M sells moveable to N but does not deliver, creditors of M can seize while moveable remains in M’s possession

Question 16

Bonda Fide Purchaser Doctrine

Answer 16

Lost and Stolen Things – If a thing is lost or stolen, the person having possession of it cannot transfer its ownership to another.

1. “Stolen” means the true owner did not consent to possession by another. (It does not include fraud.)
2. This rule is subject to law of acquisitive prescription (3 years)
3. When owner recovers from transferee, the owner must reimburse the transferee his purchase price if transferee bought in good faith from a merchant who customarily sells such things.
   a. If sold by authority of law, then transferee will prevail against the former owner with no reimbursement.

Vices of Consent (Common Law Error/Fraud/Mistake/Duress)

1. If owner transfers to a transferee in a transaction ‘tainted with a vice of consent’, and the transferee transfers to a third-party, the third party transferee gets ownership if third party in good faith and paid fair value of the thing.
   a. Good faith exists unless the third party knows or should have known that transferor was not the owner.
   b. Fraud is covered here, not under lost/stolen.

Registered Moveables – as a general rule, the transfer of a registered moveable requires a certificate of title

Where a question on bona fide purchaser but no clear consent, weigh relative innocence/negligence of the two parties and award ownership to less negligent party. Recent cases apply the lost/stolen analysis to these situations

Question 17

Co-Ownership

Answer 17

Generally – ownership of the same thing by two or more persons is “ownership in indivision”. In absence of other provisions, shares of all co-owners are presumed to be equal

Question 18

Rights and Duties of Co-Owners

Answer 18

Fruits and Products – if produced by a co-owner then all co-owners share fruits and products in proportion to their ownership after deduction of costs of production.

Use and Management of Co-Owned Thing

Partition (Ending of Co-Ownership)

Question 19

Use and Management of Co-Owned Thing

Answer 19

1. Co-owners may use and manage a co-owned thing:
   a. According to an agreement (consent of all co-owners)
   b. Where there is no agreement, use and management:
   i. By “destination of the thing” – historical use
2. Ex, was a retail store, one wants to convert to factory, other doesn’t, remains retail store
3. All can use it, can’t deprive another of making destination use
4. If impossible, resort to partition
   ii. By court order – when partition is not available and co-owners cannot agree, a court may determine use or management on petition of a co-owner
5. Alienation
   a. A co-owner has freedom of dispensation as regards his share of a co-owned thing
   b. All co-owners must consent to a lease, alienation, encumbrance, substantial alteration or improvement
6. Right to Reimbursement of Expenses
   a. A co-owner is entitled to reimbursement for necessary expenses, ordinary maintenance, and repairs. This is subject to reduction for value of that co-owner’s exclusive enjoyment.
   b. Substantial alterations or substantial improvements may be undertaken only with consent of all co-owners
   i. Improvements Without Consent:
7. Improvements consistent with use of property – where substantial alterations are made that are consistent with use of property, other co-owners may not demand demolition or removal. Bound to keep them and pay either cost of materials/workmanship, or current value, or enhanced value of immovable
8. Improvements inconsistent or where consent denied, other co-owners can demand demolition/removal and claim damages or keep and pay current or enhanced value

Question 20

Partition (Ending of Co-Ownership)

Answer 20

1. Any co-owner has the right to demand partition.
2. Partition can be excluded by agreement for up to fifteen years. (Exception for electric generating plant, which goes to 99 years.)
3. If use of thing is indispensable for the enjoyment of another thing owned by one of the co-owners, partition is excluded. (Graves)
4. Modes of partition:
   a. Voluntary partition – all co-owners can agree on mode of partition. Extrajudicial partition can be rescinded on account of ordinary vices of consent.
   i. Can be rescinded for “lesion” if value of the part received by a co-owner is less by more than one-fourth of the fair market value of the portion that he should have received.
   b. Judicial partition

i. Partition in Kind – thing divided into lots of nearly equal value, total aggregate value of each individual lot is not significantly lower than value of entire property. (Preferred, but very hard to do.)
ii. Partition by Sale of Thing – partitioned by licitation (public auction) or by private sale, and proceeds are distributed to co-owners

Question 21

Ownership Distinguished

Answer 21

Rights of Ownership – bundle of rights, consists of:

i. Usus – right to use and enjoy the property
ii. Fructus – right to the fruits produced from the property
iii. Abusus – right to alienate and encumber the property

Full Ownership – consists of all three elements (usus, fructus, abusus)

Naked Ownership – includes only the element of abusus. The person holding usus and fructus is a usufructuary (comparable to a life estate)

Question 22

Servitudes Generally

Answer 22

Servitudes are rights in things less than full ownership

i. Predial Servitudes – a predial servitude is a charge on a servient estate for the benefit of a dominant estate
ii. Personal Servitudes – a personal servitude is a charge on a thing for the benefit of a person. Three types: usufruct, habitation, right of use
iii. To distinguish – if the right granted confers an advantage on an estate, the servitude is predial; if a right is merely for convenience of a person, the servitude is not predial unless it is acquired by a person as an owner of an estate for himself, his heirs, and assigns.

Question 23

Predial Servitudes

Answer 23

A predial servitude is a charge on a servient estate for the benefit of a dominant estate.

i. An ‘estate’ is a distinct corporate immovable. Tracts of land, buildings, and standing timber are estates.
1. Constructions other than buildings are not, and are not subject to predial servitudes.
ii. A predial servitude itself is classified as an incorporeal immovable.

A benefit must exist to the dominant estate. But the benefit need not exist when servitude is created, can be a possible convenience or future advantage.

Question 24

Three types of Predial Servitudes

Answer 24

Natural Servitudes – arise from the natural situation of estates

Legal Servitudes – imposed by law

Conventional/Voluntary Servitudes – established by juridical act, prescription, or destination of the owner

Question 25

Requirement of Dual Estates (2 estates, 2 different owners) for Predial Servitude

Answer 25

Inseparability of Servitude – a predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated or encumbered separate from the dominant estate

Charge Follows Servient Estate – continues when ownership changes

Proximity or Contiguity of Estates Not Required

Two Estates Must Belong to Separate Owners

1. A co-owner can have a servitude on an estate on which he is the sole owner.

Question 26

Nature of Real Obligation Imposed by Predial Servitude

Answer 26

Servient Estate Not Required to ‘Do’ Anything (Can’t create an Affirmative Duty). Can either require servient estate to:

1. Abstain from doing something on his estate, or
2. To permit something to be done with his estate.

Servitude Cannot Impose Private Transfer Fee Obligations on Servient Estate Upon Alienation, Lease, or Encumbrance

Servient Estate Owner May be Required to Keep Estate in Suitable Condition for Exercise of the Servitude due to the Dominant Estate

Question 27

Natural Servitudes

Answer 27

Natural servitudes arise from the natural situation of estates

Natural Drainage – an estate below is bound to receive the surface waters that flow naturally from the estate below (can’t be caused by man)

i. Servient estate cannot prevent the flow of water.
ii. Dominanet estate cannot render the servitude more burdensome.

Estate Bordering on Running Water – owner of an estate bordering on water may use it as it runs through. A riparian owner my assign access rights for any purpose if they’re environmentally and ecologically sound

Estate Through Which Water Runs – can use it but cannot stop it or give it another direction. Must return water to its ordinary channel before it leaves estate.

Question 28

Legal Servitudes

Answer 28

Legal servitudes are limitations on ownership established by law for benefit of the general public or particular persons.

Limitations on Ownership

i. Keeping Buildings in Repair
ii. Projections – may not build projections beyond boundary of estate
iii. Rain Drip from Roof – rainwater can’t fall on ground of neighbor
iv. Encroaching Buildings – where landowner in good faith constructs building that encroaches on adjacent estate, owner does not complain within reasonable time after knew or should have known after construction is substantially completed, court can allow building to remain. Owner of building acquires predial servitude upon payment of compensation for value of servitude and other damages.

Common Enclosures

Right of Passage - Enclosed Estates

Question 29

Common Enclosures

Answer 29

Party Walls (common structural walls) – the landowner who builds first has the right to rest half of the wall on his or her neighbor’s land if the wall is: (1) solid masonry, (2) at least as high as the first story, and (2) not more than 18 inches thick plus 3 inches of plaster

1. Creating a Common Wall – becomes common immediately if neighbor pays one-half of its cost and at a later time if neighbor pays ½ of then-current value
2. Presumption – a wall separating adjoining buildings and resting on two estates is presumed to be common up to highest point of lower building (can be rebutted by showing of non-payment)
3. Co-Owners share expenses for necessary repairs in proportion to interest and can be relieved of obligation by abandoning in writing if no construction supported by wall.

Common Fences – a fence on boundary presumed common

Common Ditches – ditch between two estates presumed common, both responsible for maintenance

Plans

1. Common plants – trees, bushes, other plants on boundary presumed to be common. Either landowner may remove at his expense if plant interferes with his enjoyment of property
2. Separate plants – if on your property, do with as you please. However, can demand roots and branches that extend onto and interfere with enjoyment to be trimmed at neighbor’s expense

Question 30

Right of Passage - Enclosed Estates

Answer 30

An owner of an estate with no passage to public road can claim right of passage (with indemnification) over neighboring property to nearest public road.

1. Servitude of passage limited to kind of traffic reasonably necessary
2. Owner of dominant estate may construct a road as necessary and pay damages to servient estate

Location of Passage – Must use shortest route to public road where least injurious to the servient estate.

1. Owner of dominant (enclosed) estate has no right to relocate this servitude after it’s fixed.
2. Owner of servient estate has right to demand relocation at his own expense as long as it affords same facility to dominant estate

Prescription – right for indemnity against owner of enclosed estate may be lost by prescription, accrual has no effect on right of passage

Gratuitous Right of Passage – if property becomes enclosed by partition or voluntary alienation, passage shall be furnished gratuitously by owner of land on which the passage was previously exercised, even if not shortest route, and even if alienation/partition doesn’t mention servitude of passage

No Right of Passage – if estate becomes enclosed due to voluntary act of owner, neither owner nor universal successors has right to passage

1. Does not apply to an estate enclosed when servitude granted in a partition prescribes – these entitled right of passage for indemnity

Question 31

Conventional Servitudes

Answer 31

Usually created by title or juridical act (wills, contracts, etc.). Conventional servitudes may be established by an owner on his estate or acquired for his benefit. Established on or for benefit of distinct corporate immovable.

i. Use and extent of these servitudes are regulated by the title are which they are created or by the default rules of the Civil Code.
ii. Examples: support, view, prohibition of view, light, prohibition of light, passage

Question 32

Types of Conventional Servitudes

Answer 32

Affirmative vs. Negative (relevant to prescription of nonuse)

1. Affirmative – giving owner of dominant estate right to do something on the servient estate
   a. Right of way, drain, and support
2. Negative – restricts the owner of the servient estate from doing something that he’d otherwise have right to do
   a. Prohibition on building, use of estate for commerce

Apparent vs. Nonapparent (relevant to manner of acquisition of servitude)

1. Apparent – perceivable by exterior works on servient estate
   a. Ex.: roadway, window in common wall, aqueduct, etc.
2. Nonapparent – no apparent sign on servient estate
   a. Ex.: Prohibition on building above a certain height

Question 33

Establishing Conventional Servitudes

Answer 33

By Title (similar to common law “express grant of easement”)

1. However you would create an immovable generally – Requires a writing describing the immovable signed by parties
2. Substantive Form Requirements

Persons Who Can Establish Conventional Servitude (on p. 36 of outline)

1. Mandatary – may establish a predial servitude if he has an express an express and special power to do so

Property Affected by Conventional Servitude

1. Owner of servient estate may grant other servitudes if they don’t interfere with existing servitudes.
2. Mortgage – predial servitude can be established on a mortgaged property. Mortgagee can demand payment of debt if property value is diminished. If property is sold free of post-mortgage servitude, acquirer of servitude has action for restitution against owner who established it
3. Public things – servitudes can be established on public things, including property of the estate
4. Multiple estates – can be established on one estate for benefit of several, or established on several for benefit of one
5. Reciprocal – title that establishes a servitude for benefit of dominant can also establish a servitude on dominant for benefit of servient (single driveway between two lots)
6. After-Acquired Property – parties may agree that a servitude will exist on propert if every acquired by one even though at that time he or she does not own it

Legal and natural servitudes may be altered by agreement if the public interest is not adversely affected. Doubt as to the existence/exercise of a predial servitude is resolved in favor of servient estate.

Question 34

Establishing Conventional Servitudes by Means Other Than Title

Answer 34

Creating Apparent Servitude (easement implied by prior use) - apparent conventional servitudes can be acquired via title, by destination of the owner, or prescription

1. Destination of Ower – Where two estates owned by same person and a relationship between the two estates resembles a servitude, apparent conventional servitude is formed where owner ceases to own both estates unless express provision to the contrary.
2. Acquisitive prescription – an apparent servitude can be acquired in good faith and just title in 10 years, or in 30 years in absence of good faith and just title

Creating Non-Apparent Servitude

1. Generally created by title or by destination of owner, but not by acquisitive prescription
2. Destination of owner established here only if the single owner of two estates has previously filed for registry a formal declaration establishing the destination

Question 35

Rights of Dominant Estate

Answer 35

Right to Make Necessary Work – may make at his expense all works necessary for use and preservation of servitude, may enter servient estate for this purpose and deposit materials, with as little damage as possible

Right to Compent Servient Estate Owner to Make Works – may impose duty on servient estate to make necessary works at his expense, must do so unless he abandons servient estate

Rights Upon Division of Dominant Estate – if dominant estate is divided, servitude remains as to each part provided servitude does not become more burdensome on servient estate

Right to Freedom from Interference – owner of servient estate cannot interfere with servitude

Question 36

Extinction of Conventional Servitude

Answer 36

Total and Permanent Destruction of Dominant Estate or Burdened Part of Servient Estate Extinguishes Servitude

Temporary Uselessness does not terminate servitude, it resumes when servitude becomes useful again (unless prescription has run)

Question 37

Prescription of Nonuse of Servitudes

Answer 37

Conventional servitudes are extinguished by ten years of nonuse. (Ownership does not extinguish with nonuse; natural and legal servitudes do not prescribe for nonuse)

Commencement of Ten-Year Period

1. Affirmative Servitudes – commences on date of creation, is interrupted by use, and commences again after termination of use
   a. Use by Co-Owner – use by a co-owner in indivision applies to all co-owners
   b. Use by Third Person – servitude is preserved by anyone using it if use can be construed as appertaining to dominant estate
   c. Partial Use – partial use constitutes using the whole of the servitude but use of an accessory right to the servitude is not use of a servitude
2. Negative Servitudes – prescription commences from the date of contrary act or violation, accrues ten years later absent interruption

Suspension of Prescription – if owner of dominant estate is prevented from using servitude by obstacle he is powerless to remove, prescription is suspended for up to ten years

1. Not suspended when building on dominant estate is destroyed causing owner to be unable to exercise servitude
2. Not suspended by minority or other disability of the owner of the dominant estate.

Confusion (common law merger) – dominant and servient estates are acquired in their entirety by the same person

Abandonment by Owner of Servient Estate

Renunciation by Owner of Dominant Estate – must be express and written

Expiration of Term

Dissolution of the Right of the Grantor

Question 38

Building Restrictions

Answer 38

Similar to a restrictive covenant at common law.

Building restrictions are “charges imposed by the owner of an immovable pursuant to a general plan that governs building standards, specified uses, and improvements.” The plan must be feasible and capable of being preserved.

i. In the absence of a viable general plan, no building restriction. Could have a valid predial servitude.
ii. Everyone is burdened, but everyone benefits.

Question 39

Nature of Building Restrictions

Answer 39

They are incorporeal immovable and real rights, and are similar to predial servitudes (but aren’t servitudes).

Rules that apply to predial servitudes govern building restrictions unless they are incompatible with the nature of building restrictions.

Building restrictions may impose affirmative duties that are reasonable and necessary for the enforcement of the general plan and may be enforced by mandatory and prohibitory and injunctives.

1. Fees for an association, duty to cut grass on a regular basis, etc.

Building restriction cannot impose private transfer fee obligations on the occasion of an alienation, lease, or encumbrance on an owner.

Question 40

Establishing a Building Restriction

Answer 40

Can only be established by a juridical act executed by the owner o an immovable, or by all owners of the affected immovable

i. Developer of subdivision executes document stating restriction and record in conveyance record, and append a copy to individual lot sale document.

Question 41

Terminating and Amending Building Restriction

Answer 41

The act can set out procedures for termination/amendment. If the act is silent, they can be terminated or amended by agreement of a specified percentage of owners:

1. ½ of the owners if restrictions in place for 15 years, 2/3 if restrictions in place for 10 years, unanimous if 10 or less years.
2. Restrictions applicable to “residential planned communities” are governed by special rules (below)
3. Brier Lake decision – restrictions being made more burdensome effectively create new restrictions, so they don’t fall under this rule and require unanimity.
   a. Legislature overruled this, and tried to make it retroactive, and say that the creating act controls.

Liberative prescription – developer can’t bring suit for violation of a restriction more than two years from a lot’s commencement of a noticeable violation. After two years, that individual lot only is freed of the restriction that has been violated.

Abandonment – Building restrictions terminate by abandonment of the whole plan or by the abandonment of a particular restriction.

1. Can happen if the act is filed but the restriction is never invoked – abandonment before it’s in effect.
2. Noncompliance with a restriction from enough lots for more than 2 years with no action by plan can cause an inference of abandonment for the entire restriction.

Question 42

Enforcing Building Restrictions

Answer 42

Can be enforced by a mandatory and a prohibitory injunction without regard to general Code restrictions on injunctions (Article 3601)

Violators can also be sued for damages

All landowners in a subdivision are adversely affected by violations and have the right to sue. If there is a homeowners’ association, it may also sue for violations.

Question 43

Residential Planned Communities

Answer 43

“Residential planned communities” are subject to the Louisiana Homeowners Association Act (LHAA), not the general rules on building restrictions

“Residential Planned Community” = “a real estate development, used primarily for residential purposes, in which the owners of separately owned lots are mandatory members of an association by virtue of such ownership.”

Special Rules for Residential Planned Communities

1. Establishing Restriction – if document is silent, restrictions may be established by agreement of ¾ of the owners (no unanimity!)
2. Increasing Existing Restriction – requires 2/3 owners
3. Reducing or Terminating Restriction – requires ½ owners
4. Special Rights of Owners to Decline Coverage – a restriction established by agreement can be declined by an individual owner by filing a statement within 30 days with the association
5. Calculation of Voting Interests – each lot gets 1 vote, but a substantially larger-than-majority plot is treated as separate lots

Question 44

Personal Servitudes

Answer 44

Usufruct

Right of Habitation

Right of Use

Question 45

Usufruct

Answer 45

A real right of limited duration on the property of another

i. The Usufructuary has the right to use and to Enjoy the Property
ii. The Naked Owner has the right to abuse the property
iii. Nature: incorporeal, movable or immovable, and may be established for a natural or legal entity
iv. Can be Conventional or Legal
v. Multiple Usufructuaries
1. Successive are allowed if exists are conceived at time of creation
2. May be granted to two or more persons in either undivided (termination inure to benefit of other usufructuaries) or divided shares (termination inures to benefit of the naked owner)
vi. Partition and Usufruct
1. GR: Cannot compel partition
2. Exception: Usufructuary and a naked owner can combine and demand partition

Question 46

Rights of the Usufructuary

Answer 46

Usufruct over Consumable

i. Consumables: Things that are consumed on first use such as bonds, bank deposits, and promissory notes
ii. Usufructuary becomes owner, and upon termination he must pay the naked owner the value of consumed items at commence or replace them with like things of the same quality and quantity

Usufruct over Nonconsumables

i. Nonconsumables can be used multiple times, even though they are eventually worn out by normal use, wear or decay
ii. Gets Usus and Fructus
iii. Right to Fruits
1. Becomes Owner and owes no accounting for them
a. Begins on the effective date of the usufruct
b. Termination
i. Natural Fruits accrue when severed
ii. Civil Fruits accrue day to day
2. Special Problems
a. Stock: Has the right to receive cash dividends declared during the usufruct and vote the stock
i. Dividends, splits redemptions go to NO subject to usufruct
ii. Warrants go to NO free of usufruct
b. Trees
i. Not Fruits
ii. Exception: Timberlands: Land capable of producing timber in paying quantities and permitted the Usufructuary to initiate timber farming operations
iii. Must manage as Prudent Administrator
c. Animals
i. Must be Managed as prudent administrator
ii. Death
iii. Must be replaced from increase of herd
iv. Entire Herd without Fault of Usufructuary: NO bears the los
v. Usufructuary may sell or trade the herd as prudent administrator (must pay NO value of herd when sold)
d. Mortgages
i. A Post Usufruct Mortgage does not prime the usufruct
ii. A Pre Usufruct Mortgage primes usufruct

Right to Make Improvements

i. With Consent of Naked Owner
1. Usufructuary has the right to recover all improvements he had made whether or not he got consent, but he must restore the property to its former condition and will not be reimbursed for improvements he cannot remove
2. If had written consent or judicially authorized: has the right to set off for damages owed to the naked owner for destruction or deterioration of the property

3. If owner does not consent, can get court approval and give notice to the owner
   d. Right to Alienate his right of usufruct which cease at termination

Right to Alienate Nonconsumable property

i. Must obtain permission of the NO unless expressly granted by creator of usufruct
ii. Exception: MAY alienate corporeal nononsumables that are impaired by use, wear or decay
1. Must act as prudent administrator
2. Usufruct attaches to proceeds

Question 47

Duties of the Usufructuary

Answer 47

Make Inventory

Give security in amount of value of property subject to the usufruct

i. Exception: Legal, Sellers or Donors who have reserved a usufruct
ii. Exception to Exception:
1. If Naked owner he is not a child of the Usufructuary, he may obtain security (Stepchildren)
2. If the naked owner is a forced heir of the decedent, he may obtain security to the extent of the legitime

Duty to Care for the Property (Prudent administrator)

Duty to Make Ordinary Repairs

i. Can be compelled by the NO
ii. A reconstruction of the whole or substantial part of the property is extraordinary and the NO is responsible for extraordinary repairs

Duty to Pay taxes and annual charges

Question 48

Rights and Duties of the Naked Owner

Answer 48

1. Rights
   a. Alienate and Encumber Property subject to usufruct
   b. Right to Grant real rights without injury to the usufructary
2. Duties
   a. No interference with enjoyment of usufruct
   b. No alternations on the property
   i. May restore damage or make repairs

Question 49

Termination of the Usufruct

Answer 49

Generally

a. Natural Usufructuaries
i. Upon Death (not heritable)
ii. Upon expiration of term or condition
b. Juridical Usufructuaries
i. Thirty Years (Max)
ii. Expiration of Term
iii. Termination of entity

Destruction of Property (Total)

a. Exception: the loss caused by the fault of a third party, the usufruct will attach to the suit for damages

Foreclosure on pre-mortgage usufruct

Changes in Form of Property

a. Involuntary conversion due to the act of a third person, the usufruct does not terminate and all proceeds will be subject to the usufruct
b. If it is a consensual sale, the usufruct attaches to the proceeds unless agreed otherwise
c. Insurance Proceeds
i. Usufruct will attach unless the NO separately insures his or her interest
ii. Note: usufructuary may have a duty to insure (look to PA standard)

Ten year non use

Confusion

Abuse (may)

Express Written Renunciation

Effect

a. Nonconsumables: Must deliver property to NO and pay value of even thing disposed
b. Consumable: must deliver things of same quantity and quality or the value they had at the commencement

Question 50

Right of Habitation

Answer 50

Nontransferrable real right of a natural person to dwell in the house of another

Not transferable, heritable, alienate

Act as prudent Administrator

Question 51

Right of Use

Answer 51

Personal servitude that confers a specified use of an estate less than full enjoyment

1. in favor of a natural person or legal entity

Transferable

Does not terminate upon death of person or dissolution of legal entity

Question 52

Possession

Answer 52

The detention or enjoyment of a thing that one holds or exercises by himself or by another who keeps it in the possessor’s name

Acquire

i. Intend to possess as owner
1. The law presumes that one who corporeally detains a thing intends ot possess as owner
a. Exception: Does not operate if that person began to possess in the name of and for someone else
2. Precious Possession
a. The exercise of possession over a thing with the permission or on behalf of the owner or possessor
b. Presumption: presumed to possess for another
c. Termination:
i. Co-Owner: Demonstrates intent to possess for himself by overt and unambiguous acts sufficient to give notice to his co-owner
ii. Non-owners: Actual notice of intent to possess

Physical Possession

1. Corporeal Possession: Exercise of physical acts, use detention or enjoyment over a thing which turns on the use for which the land is destined
2. Civil Possession: Once possession is acquired corporeally, it can be maintained by the intention to possess as owner even though corporeal possession has ceased
3. Constructive Possession: One who corporeally possesses part of an immovable by virtue of a title is deemed to possess within the limits of his title
   a. Lands must be contiguous
   b. In absence of title, one possesses only the area on actually possession either inch by inch of within natural or artificial boundaries

Tacking

Vices: Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect

Loss of Possession

1. Abandonment
2. Eviction

Conflicts in Possession

1. Only one can possess at a time
2. Jurisprudential Hierarchy
   a. Competing Acts of Corporeal Detention: The person who acquires first has an advantage since the second person must evict the first in order for the second person to acquire possession
   b. Corporeal Detention Trumps Civil and Constructive Possession
   c. As between competing constructive possession, the first person to establish constructive possession can be evicted only by acts of corporeal possession

Question 53

Acquisitive Prescription Generally

Answer 53

The Acquisition of ownership or other real rights through possession or use for the requisite statutory period

Question 54

Acquisitive Prescription of Immovables (10 Years)

Answer 54

Elements:

1. Possession for ten years
2. Good Faith
   a. Reasonable belief in light of objective considerations that he is owner of the property
   a. Presumed and is not rebutted merely by showing the possessor suffered form an error
   b. A quitclaim deed does not automatically destroy the presumption of good faith, but it is a factor to consider
   b. Need be in good faith only at commencement
   c. Title Examination not required for buyer to be in good faith
3. Just Title
   a. Juridical Act sufficient to transfer ownership or another real right
   i. Act must be one that would have conveyed ownership or established a real right had it been executed by the true owner
   ii. Formal: must be written, valid in form and filed for registry in the conveyance records of the parish in which the immovable is situated
   iii. An Act purporting to convey ownership to an undivided interest in an immovable is a just title only as the interest purported to be transferred
4. Thing susceptible of being possessed (Private, except private things owned by state)

Question 55

Tacking of Possession in Acquisitive Prescription

Answer 55

When possession is transferred, the possession of the transferor is added to the possession of the transferee as long as there has been no interruption of possession

a. Requires a juridical link (universal or particular title evidencing the transferee’s right to succeed the transferor)
iv. Universal Successor
1. Juridical link is supplied by the legal right of the universal successor to stand in the shoes of the decedent (heirs)
2. Particular Successor
a. Juridical link is supplied by the act transferring ownership
b. Special Tacking Rules
i. Good Faith is necessary for a particular successor to tack for purposes of ten years acquisitive prescription
ii. Note, it is not necessary for a universal successor if the decedent started possession in good faith
b. Tacking in Absence of a Juridical Link: Boundary Tacking
v. If a party and his ancestors in title possessed without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds
1. There must be a juridical link as to some of the land
2. the parties must possess within visible bounds

Question 56

Interruption of Prescription of Acquisitive Prescription

Answer 56

Loss of Possession unless possessor recovers possession within one year

Prescription rungs against all, including minors and interdicts

Question 57

Thirty year Acquisitive Prescription

Answer 57

Ownership and other real rights can be acquired by thirty year prescription without the need for just title or possession in good faith

La Const does not allow either a parish or other political subdivision of the state to acquire title to immovable property through thirty year acquisitive prescription

Possession generally extends to only the land actually possessed

Question 58

Acquisitive Prescription of Movables

Answer 58

Three Year: Possession, GF, Juridical Act, Possession

Ten Year - acquire ownership without just title or GF

Question 59

Boundaries

Answer 59

Generally

i. A boundary is defined as the line of separation between contiguous lands
ii. A boundary maker is defines as a natural or artificial object that marks on the ground the line of separation of contiguous lands

Who May Compel fixing of the boundary: Landowner, Possessor, Usufructuary, Lessee (Imprescriptibie)

Method

i. Written Agreement by Landowners (Extra judicial)
1. Effect of a compromise
ii. Judicial Boundary Fixing
1. Judge will fix boundary according to ownership of parties
2. If neither party proves ownership, the judge will fix the boundary according to limits established by possession

Proving Ownership

i. Acquisitive Prescription: limits established by AP
ii. Titles: fix boundary according to their titles. If both parties trace their titles to a common ancestor, preference will be given to the more ancient title

Question 60

Occupancy

Answer 60

When you take possession of a corporeal movable thing that is not owned by anyone, you immediately take ownership

1. Ex: Oil and Gas, Wild Animals

Question 61

Treasure

Answer 61

If find treasure in something you own, you own the treasure

If find treasure if someone else’s property, you own ½ the treasure and the owner of the property gets the other ½

Question 62

Conflicts of Law

Answer 62

Immovables

i. LA Law governs LA immovables
ii. Out of State immovables apply the law that that state “would apply”
1. Classify immovable according to the law of the situs

Corporeal Movables

i. Governed by the law of the state in which the movable was situated at the time the right was acquired
ii. If the movable later becomes situated in LA, it will be subject to LA Law if:
1. The Right is incompatible with the law of this state OR
2. The holder of the Right knew or should have known that it was moved to this state OR
3. Justice and equity so detect to protect third parties

Incorporeal Movables

i. Governed by Serious Impairment Test
ii. Classify as Corporeal or Incorporeal
1. Use the law of the state where the thing is situated