Topic 14

Question 1

Perhaps the greatest difference between the two systems is that the Common Law system relies on precedents set by decisions in earlier cases as the basis for deciding the outcome of current cases. This practice is known as the principle of ____

Answer 1

stare decisis

Question 2

The Civil Law system relies on a comprehensive code of laws to decide al cases.

Answer 2

The LA Civil code

Question 3

may be animate or inanimate, but they can be seen, felt or touched, such as land or buildings

Answer 3

corporeal things

Question 4

may be understood or comprehended by the mind or thinking.

Answer 4

Incorporeal things

Ex. Rights

Question 5

owned by individuals, other private entities such as corporations, limited liability companies, limited liability partnerships, or by the state or the gov’t

Answer 5

private things

Question 6

may not be owned by anyone. These include the air and the high seas.

Answer 6

common things

Question 7

those things owned by the state or the local government.

Answer 7

public things

Ex. Running water, navigable waters, seashore, streets, and parks

Question 8

In Louisiana real property is divided into two categories:

Answer 8

movable and immovables

Question 9

consist of land, and its component parts such as buildings, timber, and unharvested fruits and crops when they belong to the owner of the land.

Answer 9

immovables

Question 10

include buildings and standing timber when they belong to a person other than the owner of the ground.

Answer 10

separate immovables

Only buildings and standing timber may be separate immovables.

Question 11

include unharvested fruits and crops when they belong to a person other than the owner of the land.

Answer 11

movables by anticipation

Question 12

All rights and actions that apply to immovables are classified as ______

Answer 12

incorporeal immovables

Ex. Right of ownership, predial servitudes, personal servitudes, mineral servitudes, royalties, and mineral leases

Question 13

things, whether animate or inanimate, that move or can be moved from one place to another.

Answer 13

corporeal movables

Ex. building materials for the construction of a new building

Question 14

Examples of incorporeal movables…

Answer 14

Rights, obligations, actions that apply to a movable, stocks ,bonds, and annuities

Question 15

includes things attached or incorporated into a building or other construction. They become component parts of the structure. This includes building materials. Once incorporated into an immovable, the thing becomes an immovable.

Answer 15

component by incorporation

Question 16

Things are considered permanently attached to a building or other construction if they cannot be removed without substantial damage to themselves or damage to the immovable to which they are attached. Things that are considered permanently attached to a building include such things as plumbing, heating, cooling, electrical, or other installations. Accordingly, they constitute component parts of the building or construction.

Answer 16

component by attachment

Question 17

Things that would otherwise be classified as immovable may be classified as movable. The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration must be filed for registry in the conveyance records of the parish in which the immovable is located. If the declaration is not so filed, the machinery, appliances, and equipment remain classified as movables.

Answer 17

component by declaration and registry

Question 18

In order for a _____ to be considered an immovable, a declaration stating that it will remain permanently attached to the land must be filed in the public records of the parish in which the land is located. The wheels must be removed, the tongue cut off, and it must be tied down.

Answer 18

mobile home

Question 19

A manufactured home may be deimmobilized by detachment or removal. But, to affect third persons, an authentic act of sale or mortgage or sale with mortgage must be filed in the appropriate mortgage and/or conveyance records.

Answer 19

detachment sale

Question 20

a French unit of measure about equal to 5/6 of an acre. It is also used as a linear measure about equal to 192 feet.

Answer 20

arpent

Question 21

In Louisiana, there are two principal meridians, the 91st West of the Mississippi River, called the______, and the 90th East of the Mississippi River, called the _____. There is one base line which transects the State of Louisiana at its center.

Answer 21

Louisiana Meridian

St. Helena Meridian

Question 22

the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.

Answer 22

ownership

Question 23

Louisiana law divides ownership into three categories:

Answer 23

1. ) Usus
2. ) Fructus
3. ) Abusus

Question 24

The right to use a thing, and to exclude other from using it.

Answer 24

usus

Question 25

The owner of a thing owns the fruits produced by the thing that come from exploiting and enjoying the thing, such as rents and royalties and natural fruits such as crops and timber.

Answer 25

fructus

Question 26

he right to alienate or dispose of the thing. It includes consuming it, giving it away, selling it, and encumbering it by mortgage or pledge.

Answer 26

abusus

Question 27

A person who owns both the usus and the fructus owns the _____

Answer 27

usufruct

Question 28

The owner of the remaining right, the abusus, is called the ____

Answer 28

naked owner

Question 29

a charge on a thing

Answer 29

servitude

Question 30

There are two kinds of servitudes:

Answer 30

personal servitudes and predial servitudes

Question 31

a charge on a thing in favor of a person.

Answer 31

personal servitudes

*can be compared to the Common Law easement in gross.

Question 32

There are 3 types of personal servitudes:

Answer 32

1. ) usufruct
2. ) habitation
3. ) right of use

Question 33

a real right of limited duration on the property of another. It is similar and may be compared to a “life estate” in the common law, but it is not identical.

Answer 33

usufruct

Question 34

The owner of the usufruct is _____. Has the right to the use and the fruits of the property for a limited period of time, usually for life.

Answer 34

usufructuary

Question 35

If a thing cannot be used without being consumed or expended or its substance changed, such as money, food, beverage, it is a _____, and the usufructuary becomes the owner of the thing.

Answer 35

consumable

Question 36

Things that can be enjoyed without altering their substance, such as land, houses, or livestock, are _____. The usufructuary does not have the right to dispose of these, unless that express right was granted to him.

Answer 36

non­consumables

Question 37

is one that is created by an act.

Answer 37

Conventional Usufruct

Question 38

one that is created by operation of law.

Answer 38

Legal Usufruct

Question 39

Usufruct will terminate…

Answer 39

1. ) death of the usufructuary

2. ) if the usufruct is held by a legal entity which ceases to exist

Question 40

The usufructuary may lease, alienate ,or encumber his right. This is called ____

Answer 40

disposition

Question 41

a nontransferable real right of a natural person to dwell in the house of another. It may be established in the same manner as a usufruct. It terminates with the term provided or death of the person having it.

Answer 41

habitation

Question 42

a personal servitude that confers in favor of another person a specified use of an estate less than full enjoyment. transferable and may be inherited, unless prohibited by law or contract.

Answer 42

right of use

Ex. a hunting license

Question 43

a charge on a servient estate for the benefit of a dominant estate and is similar to easement appurtenant under the common law. The dominant estate is the one benefiting from the servitude. The servient estate is the one who gives the servitude. The two estates (land, usually) must belong to different owners and must be located in such a position that one benefits or it may be reasonably expected to benefit from the charge placed on the other. can only be terminated by the dominant estate, that is the landowner needing access. It is inseparable from the dominant estate and passes with it. The right cannot be sold or encumbered separate from the dominant estate. If the servient estate is sold, the servitude continues ever after the sale.

Answer 43

predial servitude

Ex. when one landowner obtains access across the property of the adjoining landowner to reach a public road or a water source.

Question 44

Predial servitudes may be:

Answer 44

1. ) natural
2. ) legal
3. ) voluntary or conventional.

Question 45

A property which lies at a lower elevation will naturally receive surface waters flowing from an adjoining property which is at a higher elevation. This running water may be used, but not stopped, nor diverted.

Answer 45

natural servitudes

Question 46

limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. An owner of a building must keep his building in repair so that neither it nor its materials will fall on or damage a neighbor or passerby. The owner of a building near a wall, whether or not a common or party wall, must protect his neighbor against injury. Neither projections over boundaries nor water falling from a roof onto ground of a neighbor are allowed. An owner of property may do with his estate whatever he pleases; however, this right is limited by his responsibility to not damage a neighbor.

Answer 46

legal servitudes

Question 47

one which rests half on one property and half on an adjoining property. The first person to build a wall may build half of the wall on a neighbor’s land, if the first story is constructed of masonry not over eighteen inches in width and three inches of plaster. To become a common wall, the neighboring landowner must pay one-half (1/2) its current value.

Answer 47

party walls

Question 48

An owner without access to a public road may claim a right of passage to the nearest public road; however, he must pay for the damage occasioned as a result. The owner of it may construct the type of road necessary, along the shortest route, generally at a location least injurious to intervening lands.

Answer 48

enclosed estate

Question 49

A predial servitude may be created by contract, that is by agreement of the parties.

Answer 49

conventional servitudes (voluntary)

Ex. rights of passage, projection, view, etc.

Question 50

A servitude may be acquired by ____, that is by peaceable and uninterrupted possession of the right for ten (10) years in good faith and with just title or by uninterrupted possession for thirty (30) years without good faith or just title. A predial servitude may be lost by nonuse for ten (10) years.

Answer 50

acquisitive prescription

Question 51

When the same person acquires both the dominant the servient estates, the predial servitude ceases to exist. The term for this is ____ which is similar to the common law term “merger.”

Answer 51

confusion

Question 52

If no termination date or other provision appears in the act creating the restrictions, building restrictions may be terminated or amended as follows:

Answer 52

1. After the restrictions have been in effect for fifteen (15) years, the agreement of owners representing more than one-half the land area (excluding streets and rights-of-­ways); or
2. By the agreement of both (a) owners representing two-thirds (2/3) of the land area, and (b) two-thirds (2/3) of the owners of the land (excluding streets and right-of-ways) affected by the restriction after the restrictions have been in effect for ten (10) years.
3. By abandonment of the whole plan or by the general abandonment of a particular restriction. If a particular restriction is abandoned, the affected area is freed of that restriction only.

Question 53

If a ____ is sold at the sheriff’s sale, the homeowner is assured that his homestead will sell for more than $25,000.00 and that the owner may retain or receive the first $25,000.00. The right to a homestead may be waived.

Answer 53

homestead

This is not to be confused with the $7500 homestead exemption for property taxes.

Question 54

In any ____, the act itself will invariably contain a clause in which homestead rights are waived. However, both spouses must sign if there is a waiver. By operation of law, the homestead exemption is waived, if the mortgagor is single.

Answer 54

Voluntary Act of Mortgage

Question 55

ownership by two or more persons, each having an undivided share, often called an undivided interest. The share or interest can be in any proportion, equal or unequal, as stated in the contract and may be acquired at different times and by different methods. Each owner may exercise all rights of ownership of his undivided interest, subject to legal and conventional limitations, without consent or knowledge of his co-­owners.

Answer 55

co-ownership (undivided interest)

Question 56

a system of principles and rules governing the ownership and management of the property of married person or between themselves and toward third persons. may be established by law or by contract, or a combination.

Answer 56

Community Property (Matrimonial Regime)

Question 57

The spouses, before marriage if residents of Louisiana or within one year after acquiring a domicile in this state, may enter into a ____, without court approval, modifying or rejecting the legal matrimonial regime. Without such an agreement, a legal matrimonial regime exists in accordance with law, regardless of domicile at the time of or the place of the celebration of their marriage. Must be made by authentic act or act under private signature. It is effective against third parties as to immovable property when filed in the conveyance records of the parish where the immovable property is situated.

Answer 57

matrimonial agreement or contract

Question 58

If there is no matrimonial agreement to the contrary, then any property acquired during the marriage is considered to be ___. Each spouse owns an undivided one-half interest in the property. Neither spouse may sell, encumber, or lease any immovable community property to a third person without the agreement of the other spouse. Anything in the possession of a spouse during the existence of the community is presumed to be community property, and anything acquired during the marriage through the effort, skill or industry of either spouse is community property.

Answer 58

community property

Question 59

The _____, unless specifically reserved as separate property by the spouse are also community property. In order to reserve it as separate property, a declaration must by made by affidavit and recorded in the parish where the separate property is located. There must be no commingling of the fruits with community property, that is funds must be in a separate bank account.

Answer 59

fruits and revenues of separate property

Question 60

consists of property acquired prior to the marriage, inherited by a spouse, donated to a spouse individually, things bought with separate funds, etc., including things acquired by partition of the community.
Because of the presumptions and possible challenges to the ownership of property, both spouses should sign all documents

Answer 60

separate property

Question 61

In Louisiana, a limited partnership is often called a ____. a legal entity distinct from its partners. Immovable property acquired in the name of the partnership is owned by the partnership, if at the time of the acquisition, the partnership agreement is in writing. If the partnership agreement was not in writing, the partners own the immovable individually. The partnership must be recorded with the Secretary of State in order to be effective against third parties.

Answer 61

partnership in commendam.

Question 62

may own and dispose of immovables, unless the articles provide otherwise.

Answer 62

Louisiana corporations and limited liability companies

Question 63

sets forth numerous provisions affecting the acquisition, ownership, alienation, and management of property which forms part of a condominium.

Answer 63

The Louisiana Condominium Act

Question 64

It is widely understood that the owner of a unit in a ___ project owns the land under the structure

Answer 64

townhouse

Question 65

in a ____ the land is a common element and the owner only owns an undivided interest

Answer 65

condominium

Question 66

In LA, ownership of the condo…

Answer 66

Ownership can only be determined by referring to the condominium declaration establishing the condominium regime.

Question 67

Property may be transferred by …

Answer 67

sale, donation, succession, accession, prescription, and other operations of law.

Question 68

A person may dispose of or receive property by a ___

Answer 68

donation.

Question 69

Donations take effect in two forms, namely…

Answer 69

donations inter vivos and

donations mortis causa

Question 70

donations between living persons. a gift from one person to another.

Answer 70

donations inter vivos

Question 71

Three types of donations inter vivos…

Answer 71

1. ) gratuitous
2. ) onerous
3. ) remunerative

Question 72

donation is a gift made without condition.

Answer 72

gratuitous donation

Question 73

donation is burdened with charges imposed upon the donee, or person receiving the donation.

Answer 73

onerous donation

Question 74

made to repay the donee for services rendered. If the value of the donated thing must be substantially greater than the amount of the remuneration, or it would be a sale rather than a donation.

Answer 74

remunerative donation

Question 75

The donor of immovable property may ___ the usufruct to himself.

Answer 75

reserve

Question 76

he may stipulate the ___ of the object given should he survive the donee.

Answer 76

right of return

Question 77

A donor may ___ a donation for several reasons, including ingratitude by the donee, non-fulfillment or non-performance of conditions, or conventional return. A donation in the chain of title, then, is a potential title problem.

Answer 77

revoke

Question 78

another name for a will. an act by which an individual disposes of his property with the actual donation to take effect upon the death of the donor. The act is usually called a last will and testament, but requires the same formalities as other donations. There are several kinds of wills, each having certain requirments.

Answer 78

Donation Mortis Causa

Question 79

Effective July 1, 1999, Louisiana will recognize only two forms of testaments…

Answer 79

olographic and notarial wills

Question 80

one which is written dated, and signed by the testator or testatrix in his or her own handwriting.

Answer 80

Olographic will

Question 81

is one which is written, usually typed, and signed by the testator in the presence of a notary and two witnesses. It is similar to what was previously known as the statutory will.

Answer 81

Notarial will

Question 82

the acquisition of the willed property, or succession by the legal heir or the testamentary heir, and it occurs immediately upon death, even if the heir does not know of the death.

Answer 82

Seizin

Question 83

is the process of transmission of the estate of a decedent to his successors. It also refers to the specific legal proceeding filed to recognize successors and place them in possession.

Answer 83

Succession

Question 84

There are two types of successions:

Answer 84

testate and intestate.

Question 85

occurs when there is a will.

Answer 85

Testate succession

Question 86

occurs when there is no will.

Answer 86

Intestate succession

Question 87

are testate successors , (those named in a will to inherit).

Answer 87

Legatees

Question 88

are intestate successors, (those who inherit when there is no will.

Answer 88

heirs

Question 89

means the property, rights, and obligations that a person leaves after his death and all that have accrued since his death.

Answer 89

Estate of a decedent

Question 90

The children of the decedent (deceased) must inherit ____

Answer 90

the forced portion, at least.

Question 91

If there is no will, the children inherit the full estate of the deceased person, and the spouse retains ____

Answer 91

usufruct

The spouse may be given usufruct in the will.

Question 92

If there are no descendants and no will,…

Answer 92

the spouse inherits the decedent’s share of the community property.

Question 93

If there are no descendants, …

Answer 93

the decedent may will his share to whomever he wishes.

Question 94

that portion of the property of the decedent that his forced heirs must receive upon his death.

Answer 94

Forced Portion, or Legitime

Question 95

The balance of the decedent’s estate is called…

Answer 95

the disposable portion.

Question 96

The disposable portion is…

Answer 96

three-fourths (3/4) if the decedent leaves one (1) forced heir at his death and one-half (1/2 ) if the decedent leaves two (2) or more forced heirs.

Question 97

Forced heirs are the children of the decedent who at the time of the death of the decedent are:

Answer 97

1. Twenty-three (23) years of age or younger ( or under 24); or
2. Any age, but because of some mental incapacity or physical infirmity are permanently incapable of taking care of their persons or managing their property;

Question 98

When the deceased person’s child has predeceased him, the descendants of the predeceased child are also forced heirs, if:

Answer 98

1) The decedent’s child would have been twenty-three (23) years of age or younger at the time of decedent’s death
2) The decedent’s child was permanently incapable of taking care of his person or managing his property, regardless of his age at the time of the decedent’s death.

Question 99

The ownership of a thing includes, by ___, the ownership of everything that it produces or is united with it, naturally or artificially.

Answer 99

accession

Question 100

transfer with the land unless stated in the contract. However, if they are retained by contract, they may only be retained for ten years if there is no activity.

Answer 100

mineral rights

Question 101

If buildings or other constructions are made on the property of the owner without his consent, such items belong to …

Answer 101

the owner of the land.

Question 102

If a ____ makes constructions, plantings, or works, he may recover the cost of materials and the workmanship, their current value, or the enhanced value of the immovable. The possessor may not be forced to demolish or remove the improvements.

Answer 102

good faith possessor

Question 103

If a ____ makes the improvements, the owner of the immovable may:

(1) keep them or
(2) demand their demolition and removal at the possessor’s expense and
(3) recover damages. If he keeps the improvements, he must pay the possessor the current value of the materials and the workmanship or the enhanced value of the immovable.

Answer 103

bad faith possessor

Question 104

the natural build up of soil along the bank of a river or stream, whether navigable or not. The alluvion belongs to the owner of the bank, subject to public use.

Answer 104

alluvion

There is no right of alluvion on the shore of the sea or lakes.

Question 105

formed by water receding from a river or stream. The owner of the land situated at the edge of the bank left dry owns it.

Answer 105

the dereliction

There is no right of dereliction on the shore of the sea or lakes.

Question 106

When the ____ carries away an identifiable piece of ground and unites it with other land on the same or opposite bank, the owner does not lose the property, if he claims it in writing within a year, or if over a year, he may claim the land if another owner has not taken possession.

Answer 106

sudden action of water

This is called avulsion in the Common Law states.

Question 107

If a ____ abandons its bed and opens a new one, the owner of the land on which the new bed is located takes ownership of the abandoned bed (proportionate to the land he lost). If the river returns to its old bed, the owner takes ownership of his former land.

Answer 107

navigable river or stream

Question 108

__ that are not attached to the bank, formed in the beds of navigable rivers or streams belong to the state.

Answer 108

Islands and sandbars

Question 109

The ____ on a non-navigable river or stream owns to the middle of the bed (in the absence of title or prescription).

Answer 109

riparian owner

Question 110

the right or power of the government to take private property for public use upon paying just compensation.

Answer 110

eminent domain

Question 111

is the Common Law term describing the use of the power or right of eminent domain.

Answer 111

condemnation

Question 112

LA uses two terms for eminent domain:

Answer 112

(1) expropriation

(2) appropriation

Question 113

the authorized judicial taking of private ownership rights upon payment of just compensation. It is a synonym for “taking”. the action which is authorized by the right of eminent domain.

Answer 113

expropriation

Question 114

must be made to the owner of the property being taken.

Answer 114

compensation

While many consider fair market value to be the measure, just compensation also includes all loss suffered by the owner.

Question 115

the unauthorized use by the government to deprive an owner of his property without conforming to law. also used to describe an exercise of public property rights, without paying compensation, pursuant to the inherent police powers of a government, recognized by the courts as valid.

Answer 115

appropriation

Question 116

the exercise of physical acts of use or enjoyment.

Answer 116

Corporeal possession

Question 117

When a person possesses part of an immovable, he is deemed to have ____ of the entirety of the property within the limits of his title. In the absence of a title, a person possesses only the area in which he exercises actual physical possession.

Answer 117

constructive possession

Question 118

Ownership of immovable property may be acquired by possession for a period of time called ____

Answer 118

acquisitive prescription

adverse possession in the Common Law states

Question 119

The prescriptive period for Good Faith possession is ___

Answer 119

ten years

Question 120

Ownership may be acquired after possession for ___ if it was continuous, uninterrupted, peaceable, public, and unequivocal and in good faith at the time possession commenced.

Answer 120

ten years

Question 121

___ means the possessor believed it was his land.

Answer 121

Good faith

Question 122

Bad Faith possession is ____

Answer 122

thirty years

Requirements for possession in bad faith include possession are the same as for good faith except that the person claiming ownership does not believe that the land is his. Neither good faith, nor just title, is required. This prescription is analogous to the common law concept of squatters’ rights or title by adverse possession, although these are not Louisiana terms.

Question 123

a legal relationship whereby a person (called the obligor) is bound to render a performance in favor of another person (called the obligee).

Answer 123

obligation

Question 124

the person bound by the obligation.

Answer 124

obligor

Question 125

the person for whom the obligation is performed.

Answer 125

obligee

Question 126

an agreement by two or more parties whereby obligations are created, modified, or extinguished.

Answer 126

contract

Question 127

An obligation is ____ for the obligees when it gives each the right to demand the whole performance from the obligor. It is ____ for the obligors when each obligor is liable for the whole performance.

Answer 127

solidary

Question 128

the extinguishment of an existing obligation by the substitution of a new one. Common law jurisdictions define novation to be a substitution of parties, thereby releasing the original parties.

Answer 128

novation

Question 129

An obligation is extinguished by ____ where the obligor and obligee are united in the same person.

Answer 129

confusion

Question 130

one in which only one party is obligated.

Answer 130

unilateral contract

Question 131

one in which both of the parties are obligated.

Answer 131

Bilateral or synallagmatic contract

Question 132

when each party obtains an advantage in exchange for his obligation.

Answer 132

Onerous contract

Question 133

one in which one party is obligated for the benefit of the other, but receives no advantage in return.

Answer 133

Gratuitous contract

Question 134

If the offer specifies a time for acceptance, it is ____ during that time. If no time is specified then the offer is ___ for a reasonable time. This type of offer, if not accepted, will expire only after expiration of the time set or after a reasonable time.

Answer 134

irrevocable

Question 135

a contract whereby both parties agree that the offeror (usually a seller or lessor) is bound for a specified time and that the offeree (usually a buyer or lessee) may accept within that time. The buyer customarily purchases the right, or option, to accept or reject a promise to sell within the stipulated time, and upon acceptance by the buyer, either party may enforce specific performance. A unilateral contract.

Answer 135

option contract

Question 136

An acceptance not in accord with the terms of the offer. Essentially a new offer and constitutes a rejection of the first offer.

Answer 136

counteroffer

Question 137

In Louisiana, an obligation cannot exist without a lawful _____. The reason why a party obligates himself.

Answer 137

cause

Consideration is not mentioned or defined in the cause, which is not to say the term “consideration” is not used because it is. However, if cause is not present, there is no contract. This is true even if money is exchanged, a sales price exists, or the contract states the consideration.

Question 138

A contract is ____ when all the necessary requirements are not met.

Answer 138

null

Question 139

If the contract violates a rule of public order, it is ___ and cannot be carried out.

Answer 139

absolutely null

The term “absolutely null” is similar to the Common Law term “void”

Question 140

Contracts which have an illegal object are ____.

Answer 140

absolutely null

The term “absolutely null” is similar to the Common Law term “void”

Question 141

If a contract is flawed, but not illegal, it is ____, but may still be carried out.

Answer 141

relatively null

the term “relatively null” is similar to the Common Law term “voidable”.

Question 142

In Louisiana, if a deposit is not designated as “earnest money” then it is considered to be a _____

Answer 142

specific performance deposit.

Question 143

Considered to be liquidated damages. Either party is at liberty to withdraw from the contract. The party who gave it must forfeit it to the other if he withdraws from the contract. If the one who withdraws is the one who received it, he must return double its amount to the other. Neither party can sue for specific performance or other damages.

Answer 143

earnest money

Question 144

To perfect a sale, there are three requirements:

Answer 144

(1) the thing sold
(2) the price
(3) the consent of the parties.

Question 145

All transfers of immovables must be in writing, as in other states. However, a verbal sale is good against a party if

Answer 145

(1) the immovable has been actually delivered and
(2) he confesses it when interrogated under oath.

However, Louisiana License Law states that all real estate sales contracts must be in writing.

Question 146

one executed and signed by each party and two witnesses before a notary public. The party may affix his mark, if he does not know how to sign. If a party is blind, there must be three witnesses. It is full proof of the agreement against the parties.

Answer 146

authentic act

Question 147

ne signed by the parties. It is full proof against a party only if it is acknowledged. There are several ways to acknowledge an act under private signature. One such way is for the party to appear before a notary public in the presence of two witnesses and recognize that the signature on the document belongs to him. Without full proof, a signature must be proved in court before it can be admitted into evidence.

Answer 147

act under private signature

Question 148

The document itself transfers title from the seller to the buyer, however, to be effective against third persons it must be recorded in the public records of the parish where the immovable is located. Without such registry, the sale is null as to third parties.

Answer 148

Effective Transfer

Question 149

he sales instrument transferring title is called ____ The word “deed,” although often used in some parts of the state, is a common law term. It does not appear in the civil code.

Answer 149

a contract of sale, a sale or a conveyance.

Question 150

A sale of immovable property may be rescinded for lesion, if the price was below a certain point. If the price of the immovable was less than half the value the property had at the time of the sale, the sale may be rescinded for ___. If the buyer has already sold the property to a third person, the sale cannot be rescinded. However, the seller may recover from the buyer whatever profit the buyer realized from the sale to the third person.

Answer 150

lesion beyond moiety.

The time period in which to file for lesion beyond moiety is one year.

Question 151

the avoidance of a sale on account of some defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the defect. If the buyer knew of the defects, if they were apparent or could have been discovered by reasonable inspection, or if they were declared to him before or at the time of the sale, then redhibition is not available.

Answer 151

Redhibition

Question 152

The buyer must bring his action in redhibition against a seller who did not know of the defect within _____ from the date of delivery or within ____ of the date of his discovery of the defect, whichever occurs first. The buyer may demand reduction of price, instead of rescission, or the judge may decree it. The name of this legal action is guano minoris.

Answer 152

one (1) year

Question 153

If the seller commits ___ by affirmatively declaring a quality that does not exist, damages and attorney’s fees may be recovered.

Answer 153

fraud

Question 154

Although warranty is by law and need not be set forth in any agreement, it may be limited by agreement in the conveyance. Even so, the buyer may be entitled to return of the purchase price, unless he expressly assumes the risk.

Answer 154

limiting warranty

Question 155

Although the code does not provide for a quitclaim, it is customarily used to clear up clouds on title by releasing any possible right or interest in the property by the grantor. A quitclaim is not a warranty of ownership but rather a statement that the grantor does not claiming ownership.

Answer 155

quitclaim warranty

Question 156

a remedy of the seller for non-payment of the purchase price. This is a remedy in addition to and not dependent on a mortgage that may have been retained as security for the payment.

Answer 156

dissolution of sale

Question 157

A seller may reserve the right to redeem the immovable property by returning the price. This right may not be reserved for more than ten (10) years.

Answer 157

right of redemption

Question 158

the licensee named by the broker as the agent of the client.

Answer 158

designated agent

Question 159

The agency relationship between a broker and the person for whom he is working is not determined by

Answer 159

the payment of or promise to pay compensation.

Question 160

xists when the Licensee works for both the buyer and the seller in the same transaction. Must have consent of both parties

Answer 160

dual agency

Question 161

can only be created by a written agreement. A licensee is not a subagent of a client or another broker solely because of the affiliation of the broker with a multiple listing or other information service. The licensee should exercise great caution, however. There may be a situation in which the licensing law is not applicable. Furthermore, the articles on mandate apply in many instances in the practice of the licensee, particularly when a power of attorney is involved. The laws of agency studied in other jurisdictions do not materially differ, and the licensee should be familiar with them.

Answer 161

subagency

Question 162

an act in which one person gives power to another to transact for him and in his name in one or several affairs. This does not include the usual listing agreement between the owner and a licensee.

Answer 162

A mandate, procuration, or a letter of attorney

Question 163

A mandate. It may be in writing, by public act, or by private act, even by letter.

Answer 163

power of attorney

Question 164

A power of attorney terminates when…

Answer 164

1. ) revoked
2. ) the agent resigns or renounces
3. ) death of either principal or agent
4. ) bankruptcy of either
5. ) interdiction of the agent
6. ) qualifications of the curator after interdiction of the principal
7. ) occurrence of a resolutory condition stipulated
8. ) when the purpose has been accomplished or becomes impossible.

Question 165

the right which the nature of the debt gives to a creditor and which entitles him to be preferred before other creditors, possibly even over those who have mortgages

Answer 165

privilege

The words privilege and lien are used interchangeably.

Question 166

The licensee most often comes in contact with two privileges…

Answer 166

the vendor’s privilege and the labor or mechanic lien.

Question 167

granted to a seller for the unpaid sales price.

Answer 167

Vendor’s lien

Question 168

The privilege granted to workmen and laborers is called by such names as labor liens, materialman’s lien or privilege, workman’s privilege, etc. The privilege may be filed within sixty days after the last work done on the project, regardless of when the work was done or materials furnished by the one claiming the privilege. usually have priority over other prior recorded liens, except for tax liens.

Answer 168

Mechanic’s liens

Question 169

a type of pledge of immovable property to secure a debt, but the debtor (mortgagor) retains possession. The creditor (mortgagee) has the power of having the property seized and sold in default of payment or other conditions set forth in the act of mortgage.

Answer 169

mortgage

Question 170

a contract. The parties may agree to whatever terms they desire within limits of the law. The mortgagor (borrower/owner) may even limit his liability to the loss of the property so that he incurs no personal liability. If the buyer successfully limits his personal liability, his liability is known as in rem liability.

Answer 170

conventional mortgage

Question 171

one stipulated by law, such as a mortgage against the property of a tutor or curator as security for his administration of the property. It affects all after-acquired immovables, unless it is by law limited to specific property.

Answer 171

A legal (tacit) mortgage

Question 172

result from a recorded monetary judgment against a debtor. It affects all non-exempt property of the judgment debtor, including after-acquired immovables. Many buyers, with judgments or legal mortgages affecting them, do not realize that these mortgages will affect immovables they later acquire, in turn affecting their plans to refinance or resell. A title examiner will normally order a mortgage certificate in the buyer’s name, as well as in the name of the seller, in order to determine the existence of such encumbrances both before and after acquisition by a buyer.

Answer 172

Judicial mortgages

Question 173

In order to give notice to third parties all mortgages must be recorded in the public records in the parish where the immovable is located.
The notary public has the duty of causing the mortgage to be recorded without delay, unless the parties expressly agree in writing otherwise.

Answer 173

Recordation of Mortgages

Question 174

The mortgage should be an authentic act, preferably, or one under private signature duly acknowledged. The notary public signs his name on the note or other obligation secured, including the date, and identifies the security instrument. He will also write “Ne Varietur”, indicating the note is without change and is the same one described in the Act of Mortgage passed before the Notary.

Answer 174

Paraph

Question 175

Generally, mortgages take effect and priority in the chronological order in which they are recorded. The collateral mortgage is often an exception, depending on when funds are advanced on the hand note. Also, some privileges, such as vendor’s privilege and a workman’s privilege, may take precedence over a previously recorded mortgage. Liens for unpaid property taxes take precedence over all mortgages and other privileges.

Answer 175

priority of liens

Question 176

The ____ of the mortgage, or of the obligations of the note secured by the mortgage, makes the buyer solidarily liable with the original mortgagor. Only if a specific release is obtained, or by passage of time under a F.H.A. insured loan, is the original mortgagor released from liability.

Answer 176

assumption

Question 177

Assuming the obligations of a note which contains a “due on sale” clause, without complying with its requirements, may ___, even if the due on sale clause does not appear in the mortgage.

Answer 177

accelerate the maturity of the note

Question 178

Buying ___ a mortgage, instead of assuming the obligations of the note, leaves the original mortgagor liable, but makes the obligation an in rem one for the buyer, in that he is not personally liable. This will not prevent the mortgagee from foreclosing, however.

Answer 178

subject to

Question 179

It is possible that buying an immovable hypothecated to a Savings and Loan Association may make the buyer personally liable on the note, whether the conveyance reads “assume” or “subject to.”

Answer 179

Caveat

Question 180

To pledge as collateral while retaining the thing pledged.

Answer 180

Hypothecate

Question 181

Upon default, the property is sold at the Sheriff’s sale and proceeds, up to the amount of the debt, go to the lender.

Answer 181

mortgage foreclosure

Question 182

Louisiana permits this type of foreclosure. If the property does not sell for the full amount owed, the creditor may obtain a deficiency judgment for the amount owed by the borrower above the proceed’s of the Sheriff’s sale. The debtor has the right to bid for the property only if the bid equals at least two-thirds of the appraised value.

Answer 182

sale with appraisement

Question 183

If no appraisal has been made, the lender forfeits the right to obtain a deficiency judgment.

Answer 183

sale without appraisement

Question 184

Under this process the borrower, “sells” the property to the lender in return for the lender canceling the note. The lender does not retain the right of a deficiency judgment if the property sells for less than the borrower owed.

Answer 184

Deed in Lieu of Foreclosure or friendly foreclosure

In LA, called dation en paiement.

Question 185

A mortgagee may foreclose by filing suit in a manner similar to filing other ___. If a judgment is rendered for the amount of the note, plus costs, interest and fees and recognizes that the payment is secured by a mortgage affecting property, when the judgment becomes final, the judgment can be executed by having the sheriff seize and sell the property at public auction. It must be appraised and should sell for two-thirds the appraised value.

Answer 185

ordinary lawsuits

Question 186

the fastest way to foreclose

Answer 186

Executory Process/Importing confession of judgment

Question 187

Generally, to utilize executory process for the enforcement of a mortgage, several procedures must be followed:

Answer 187

1. The act of mortgage must be by authentic act;
2. The note must be properly described and paraphed by the notary
3. The mortgage must contain proper clauses in which the mortgagor confessed judgment, waived benefit of appraisement, possibly waived certain notices and delays, and consented to foreclosure by Executory Process.

No trial is necessary. A petition may be filed, a court order signed and the property sold by the sheriff within a comparatively short period of time

Question 188

Louisiana does not have or recognize the securing of a loan by a trust deed. Nor is there a “mortgage conveyance” to the lender, until the note is paid. The common law “strict foreclosure” and other labels and types of foreclosure do not apply. Nor do we have either “statutory” or “equity” redemption.

Answer 188

Common Law Comparison

Question 189

provides for periodic payments that increase one or more times and adds accrued, but unpaid, interest to the unpaid principal balance.

Answer 189

graduated payment mortgage

Question 190

provides that the rate of simple interest may be adjusted from time to time as set forth in the loan documents and is secured by a mortgage on immovable property, leasehold improvements, mobile homes, or residential mobile home.

The rates of interest may change according to certain indices, not different in principle from the commonly used adjustable rate mortgages in other states.

Answer 190

adjustable rate mortgage loan

Question 191

a second or lower ranked mortgage that has a face amount that includes sums advanced plus outstanding balances on superior ranked mortgage or incorporates provisions for the debt servicing and any other matters related to superior mortgages, the unpaid balances of which are included in the face amount of the ___.

Answer 191

Wrap-around Mortgage.

Question 192

charging more than the legal interest rate.

Answer 192

usury

Question 193

Generally, legal interest for a simple loan is equal to a rate published annually in the ____

Answer 193

LA Register

It is one percent above the average prime rate of Chase Manhattan Bank, N.A. Citicorp, N.A. Morgan Guaranty Trust Company of New York, Manufacturers Hanover Trust Company, and Bank America Corporation. But the interest rate may not exceed 14% or be less than 7%. If it cannot be computed, the rate is 12%.

Question 194

cannot exceed 12% per annum, but the owner of a note which is payable to the bearer or by assignment may claim interest up to 12% per annum, even though the rate or discount is beyond 12% per annum interest or discount.

The owner of a note which is payable to the bearer or is transferable by assignment may collect the whole amount, even though it may include a greater rate or interest than 12% per annum. However, the maximum rate stated in the note ~ 12% per annum from maturity, not from date of note.

Answer 194

conventional interest

Question 195

Exemptions from usury and prohibition of interest on interest include:

Answer 195

1. V.A. guaranteed and F.H.A. insured loans.
2. Wrap-around mortgage loans as defined by Louisiana law, if the nominal interest does not exceed the rate allowed on a conventional mortgage.
3. Graduated payment mortgages, if the nominal interest does not exceed the rate allowed on a conventional mortgage, and if the original principal balance does not increase, as a result of the addition of deferred interest, to an amount greater than 150% of the original face amount.
4. Owner-financed loans secured by mortgage on the immovable sold. The rate may be up to that allowed to be charged by Federally insured financial institutions under federal law or regulations, or 17% whichever is less (unless the federal rate is below conventional rate allowed, in which case the rate could be the allowed conventional rate).
5. Loans for commercial or business purposes.
6. Loans covered by the Louisiana Consumer Credit Law.
7. Loans to corporations and partnerships.

Question 196

forfeiture of the entire interest.

Answer 196

penalty for usury

Question 197

a contract to sell immovable property in which the purchase price is to be paid by the buyer to the seller in installments. Title to the property is retained by the seller until full payment is made. The buyer usually takes possession. If the buyer defaults on payment, the seller may cancel the ____ after forty-five (45) days’ notice by filing such a notice in the conveyance records of the parish where the immovable property is situated.

Answer 197

Bond for Deed

similar to the common law “Contract for Deed” or “Installment Sale” or “Land Contract”

Question 198

a contract in which the parties give to each other a thing, other than money. It is not a sale and rescission for lesion is generally not allowed.

Answer 198

exchange

Question 199

A party may agree that he will not sell a thing without first offering it to another person. can be enforced by specific performance. Unless otherwise agreed by the parties, the right must be exercised within 30 days and may not be granted for more than 10 years.

Answer 199

Right of Refusal

Question 200

There are no ___ paid to the State of Louisiana. Those paid to the municipalities and parishes vary according to local ordinances that provide the tax rates. All tax rates are expressed as millages.

Answer 200

property taxes

Question 201

The Louisiana constitution provides that property shall be listed on the assessment rolls at its assessed value, which shall be a percentage of its market value. The percentages are 10% for land, l0% for residential improvements, 15% for commercial buildings, l5% for electric cooperative properties (excluding land), 25% for public service properties (excluding land), and 15% for other property.

Answer 201

market value assessment

Question 202

However, bona fide agricultural, horticultural, and marsh and timberlands are assessed at 10% of use value.

Answer 202

use value assessments

Question 203

Many types of property are ___ from taxes.

Answer 203

exempt

Question 204

The primary exemption of interest to the person involved with residential properties is the ____.

Answer 204

homestead exemption

This is not to be confused with the homestead exemption from seizure by creditors.

Question 205

The ____ is $7,500.00 of assessed value, But the exemption does not extend to municipal taxes. A new owner, occupying his home, must apply to the assessor before April 15 for the year the exemption is claimed. Most parishes now provide for automatic renewal of the exemption so long as the property remains a homestead.

Answer 205

ad valorem tax exemption

Question 206

Taxes are due ____. They are delinquent if not paid by ____ of each year, at which time penalties and interest begin to accrue. If not paid, the property will be sold at tax sale by the tax collector, the sheriff, or the city tax collector. There is no bidding. The property, regardless of its value, is sold for taxes, penalties, interest and costs due.

Answer 206

when the tax rolls are filed by the local parish assessors

December 31

Question 207

Redemption within ___ is possible.

Answer 207

three (3) years

Question 208

After a monition proceeding to confirm a tax title or ___, the failure to comply with formalities cannot be challenged.

Answer 208

five (5) years

Question 209

a synallagmatic (bilateral) contract to which consent alone is sufficient and by which one party gives to the other the enjoyment of a thing at a fixed price. It’s existence permits one person to reside on the land of another, but the lease is not a real right. It is not classified as an immovable and does not have to be in writing, regardless of the term (length)

Answer 209

lease

Question 210

the landlord

Answer 210

lessor

Question 211

the tenant

Answer 211

lessee

Question 212

If the lessor (landlord) and the lessee (tenant) enter into a ___, it governs the relationship between them.

Answer 212

written agreement

Question 213

If the lease is not in writing, then the ___ will govern.

Answer 213

civil code articles

Question 214

There is no Louisiana concept of non-freehold estate or the various tenancies or estates known to common law, such as estates for years, periodic tenancy, tenancy at will, nor tenancy at sufferance.

Answer 214

common law v. civil law

Question 215

Two kinds of leases are

Answer 215

(1) Lease For Rent (or Non-farm lease) – is the letting out of houses and movables, called lease for rent, and
(2) Farm Lease - letting out of predial or country estates.

Question 216

If no time is specified in the lease, the lease is a _____. At least ten (10) days’ notice before the expiration of the month is required to terminate it.

Answer 216

month to month lease

Question 217

If a lease has expired and the lessee continues in possession for a week without opposition, the lease is presumed to have continued. The ten-day legal notice must be given before he can be compelled to vacate. But if it is a farm lease, and the farmer holds over a month without opposition, the lease shall continue for….

Answer 217

a year

Question 218

The lessor (landlord) has a privilege on ____, except for certain items exempt from seizure, even if they belong to a third party. The third party may claim them prior to judicial sale, however. If they have been removed from the premises, the lessor can have them seized in exercise of his privilege within fifteen (15) days of removal.

Answer 218

movables found on the premises

Question 219

For failure to pay rent, the lessee can be expelled. If he has not waived notice, in writing, and the lease does not provide otherwise, the lessor must give ____ notice to vacate.

Answer 219

five (5) days’

Question 220

Upon filing eviction suit, the court will order the lessee to vacate, if the lessee is in default. Within ____, if he does not vacate, the court may order that he be expelled and the property cleared

Answer 220

three (3) days

Question 221

Should the lessee furnish an advance deposit to secure any party of the lease, the lessor must return it upon termination of the lease within ____, less any amount required to remedy a default or unreasonable wear to the premises. An itemized statement must be given to the lessee, accounting for the proceeds retained and giving the reasons for the retention.

Answer 221

one (1) month

Question 222

Should the lessee abandon the premises without notice or prior to termination, the lessor may retain the deposit without the itemizations. The tenant may recover ___ or ____, whichever is greater, plus costs and attorney’s fees for willful failure to comply with these provisions. No waiver of the lessee’s rights concerning these provisions is valid.

Answer 222

actual damages or $200