Civil Law Property Bar Outline

LOUISIANA P ROPERTY LAW
OUTLINE WINTER 2002 T ABLE OF CONTENTS CLASSIFICATION OF PROPERTY . . . . . . . . . . Common, Public & Private Things . . . . . . Generally . . . . . . . . . . . . . . . . . Water Bodies and Water Bottoms . Roads . . . . . . . . . . . . . . . . . . . . Corporeals and Incorporeals . . . . . . . . . . Incorporeal Things . . . . . . . . . . . Corporeal Things . . . . . . . . . . . . Movables and Immovables . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . Immovables . . . . . . . . . . . . . . . Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1 .1 .1 .1 .4 .5 .5 .5 .5 .5 .6 10 10 10 10 10 11 12 12 12 13 14 14 14 14 15 15 15 15 15 16 DANE S. CIOLINO1
ACCESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fruits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Owners Rights to Fruits . . . . . . . . . . . . Possessors Rights to Fruits and Products Accession in Relation to Immovables . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . . . Ownership . . . . . . . . . . . . . . . . . . . . . . Claims . . . . . . . . . . . . . . . . . . . . . . . . . TRANSFER OF OWNERSHIP . . . . . . . . . . . . . . . Immovables . . . . . . . . . . . . . . . . . . . . . . When Effective As Between Parties When Effective As to Third Parties Movables . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . When Effective . . . . . . . . . . . . . . The Bona Fide Purchaser Doctrine . . . . . . . Lost and Stolen Things . . . . . . . . . Vices of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Associate Professor of Law, Loyola Law School, New Orleans. The authors e-mail address is dciolino@loyno.edu.
LOUISIANA PROPERTY LAW
Registered Movables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CO-OWNERSHIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Presumption of Equality . . . . . . . . . . . . . Comparative Note . . . . . . . . . . . . . . . . . Rights and Duties of Co-Owners . . . . . . . . . . . . . Fruits & Products . . . . . . . . . . . . . . . . . Use and Management of Co-Owned Thing Right to Reimbursement of Expenses . . . . Substantial Alterations and Improvements . Partition of Co-Owned Property . . . . . . . . . . . . . Right to Partition . . . . . . . . . . . . . . . . . . Excluding Partition . . . . . . . . . . . . . . . . . Modes of Partition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 16 16 16 16 16 17 17 17 18 18 18 18 19 19 19 19 19 19 20 20 20 20 20 20 20 20 20 21 21 22 28 28 31 31 31 31
DISMEMBERMENTS OF OWNERSHIPSERVITUDES GENERALLY Ownership Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . Rights of Ownership . . . . . . . . . . . . . . . . . . . . . . . . Full Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Distinguishing Types . . . . . . . . . . . . . . . . . . . . . . . . PERSONAL SERVITUDES . . . . . . . . . . . . . . . . . Right of Use . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . Distinguishing from Usufruct . . . . Right of Habitation . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . Establishment and Extinction . . . . . Duties of Right Holder . . . . . . . . . Usufruct . . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . Rights and Duties of Usufructuary . Rights and Duties of Naked Owner Termination of Usufruct . . . . . . . . PREDIAL SERVITUDES . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . Predial Servitude Defined Types . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
Requirement of Benefit to a Dominate Estate . . . . . . . . Requirement of Dual Estates . . . . . . . . . . . . . . . . . . . Nature of Real Obligation Imposed by Predial Servitude Natural Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Natural Drainage . . . . . . . . . . . . . . . . . . . . . . . . . . . Estate Bordering on Running Water . . . . . . . . . . . . . . Estate Through Which Water Runs . . . . . . . . . . . . . . Legal Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limitations on Ownership . . . . . . . . . . . . . . . . . . . . . Common Enclosures . . . . . . . . . . . . . . . . . . . . . . . . Right of PassageEnclosed Estates . . . . . . . . . . . . . . Building Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Building Restrictions Defined . . . . . . . . . . . . . . . . . Nature of Building Restrictions . . . . . . . . . . . . . . . . . Establishing Building Restrictions . . . . . . . . . . . . . . . . Terminating and Amending Building Restrictions . . . . . Interpreting Building Restrictions . . . . . . . . . . . . . . . . Conventional Servitudes . . . . . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Establishing Conventional Servitudes . . . . . . . . . . . . . Rights of the Dominant Estate . . . . . . . . . . . . . . . . . . Extinction of Conventional Servitudes . . . . . . . . . . . . ACQUISITIVE PRESCRIPTION AND POSSESSIONGENERALLY Acquisitive Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Comparative Note . . . . . . . . . . . . . . . . . . . . . . . . Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Possession Defined . . . . . . . . . . . . . . . . . . . . . . Acquiring and Maintaining Possession . . . . . . . . . . Loss of Possession . . . . . . . . . . . . . . . . . . . . . . . Conflicts in Possession . . . . . . . . . . . . . . . . . . . . . ACQUISITIVE PRESCRIPTION OF IMMOVABLES . . Ten-Year Acquisitive Prescription . . . . . . . . . . Elements Explained . . . . . . . . . . . . . . Tacking of Possession . . . . . . . . . . . . Interruption of Prescription . . . . . . . . . Thirty-Year Acquisitive Prescription . . . . . . . . . Generally . . . . . . . . . . . . . . . . . . . . . Irrelevance of Constructive Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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31 31 32 32 32 32 32 32 32 33 34 35 35 35 36 36 36 36 36 37 40 41 43 43 43 43 43 43 43 43 46 46 47 47 47 50 53 53 53 53
iii
ACQUISITIVE PRESCRIPTION OF MOVABLES Generally . . . . . . . . . . . . . . . . . . . . . . . Three-Year Acquisitive Prescription . . . . . Possession . . . . . . . . . . . . . . . . Good Faith . . . . . . . . . . . . . . . . Juridical Act . . . . . . . . . . . . . . . Possession . . . . . . . . . . . . . . . . Ten-Year Acquisitive Prescription . . . . . .
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53 53 53 53 53 53 53 54
iv
I.
CLASSIFICATION OF PROPERTY: Things are divided into common, public, and private; corporeals and incorporeals; and movables and immovables. See LA. CIV. CODE art. 448. A. Common, Public & Private Things 1. Generally a. Common Things: Things that may not be owned by anyone and which may be used freely in the manner which nature intended (for example, the air and the high seas). See LA. CIV. CODE art. 449. Public Things: Things vested in the state or one of its subdivisions in its public capacity. Their use is open to all although the use may be restricted for the publics benefit. The key to public things is that they are out of commerce. Public things include natural navigable waters, territorial sea, seashore, highways, streets, and public squares. See LA. CIV. CODE art. 450. Private Things: Things owned by private individuals or by the state in its private capacity. Anything that is not common or public is private. The key to private things is that they are in commerce. See LA. CIV. CODE art. 453.
b.
c.
2.
Water Bodies and Water Bottoms a. Bodies of Water (1) Navigable Waters (a) Generally: All natural navigable bodies of water are owned by the state as public things and their use is free to all. See LA. CIV. CODE art. 450. Navigability: A body of water is navigable if it is capable of being used as a highway for commercial traffic. If it is navigable in fact, it is navigable in law. Note that the body of water need not be currently navigated; it only needs to be capable of being so used.
(b)
(2)
Navigable Canals: If a canal is built with private funds on private land it will be private property and public use can be effectively enjoined. Even if public water is diverted to the canal its ownership will remain private. See LA. CIV. CODE art. 450, cmt. f. Sea and Seashore (a) High Seas: The high seas are a common thing. See LA. CIV. CODE art. 449.
(3)
(b)
Territorial Sea: The territorial sea is a public thing. See LA. CIV. CODE art. 450. Practically speaking, the territorial sea is the Gulf of Mexico to the extent it is owned by the State of Louisiana. The courts have also interpreted sea to include Lake Pontchartrain and, under the arms of the sea doctrine, those small, irregularly shaped bodies of water in the vicinity of the open gulf. Seashore: The seashore is a public thing. See LA. CIV. CODE art. 450. i) Generally: Seashore is the space of land over which the waters of the sea spread in the highest tide during the winter season. See LA. CIV. CODE art. 451. Practically speaking, the states owners hip extends to that land normally covered by the waters of the Gulf during the highest tides of the winter season. Dardar: In Dardar v. Lafourche Realty Co, 985 F.2d 824 (5th Cir. 1993), the Fifth Circuit held that nonnavigable tidelands and swampland subject to indirect freshwater tidal overflowbut not direct coastal ebb and flowmay be privately owned. Accord LA. REV. STAT . 9:1115.1.
(c)
ii)
b.
Water Bottoms (1) (2) Bottoms of Nonnavigable Water Bodies: Privately owned. Cf. LA. CIV. CODE art. 450. Bottoms of Navigable Rivers and Streams (a) Beds : The state owns the beds of navigable rivers and streams to the low water mark. See LA. C IV. CODE art. 450. Banks: The bank is the land between the ordinary highand low-water mark. Nevertheless, when there is a levee established according to law, it establishes the bank. See LA. CIV. CODE art. 456. i) Private Ownership: The banks of navigable rivers and streams are private things. See LA. CIV. CODE art. 456.
(b)
ii)
Public Use: Banks of navigable rivers and streams are private things subject to public use. See LA. CIV. CODE art. 456. The use must be incidental to navigation on the stream. Mooring would be allowed but not camping on the banks. See L A . CIV. CODE art. 456, cmt. b.
(3)
Bottoms of Other Navigable Water Bodies: The bottoms of all other natural navigable water bodies are public things. See LA. CIV. CODE art. 450. (a) State Owns to High-Water Mark: The states ownership is not limited to the land lying below the ordinary low water mark, since the definition of bank contained in article 456, which is the source of the limitation of the states ownership of rivers, applies only to the banks of rivers. Consequently, the states ownership of all natural navigable water bodies, except for rivers and streams, extends to the ordinary high water mark. River or Something Else?: To distinguish between rivers and other water bodies, courts consider the following factors. See State v. Placid Oil Co., 300 So. 2d 154 (La. 1974). i) ii) iii) iv) Size and Shape: Compare width to bodies of water that flow into it. Depth: In relation to waters flowing into it. History: Historical designation. Current: In relation to waters flowing into it.
(b)
c.
Accretion, Alluvion and Dereliction: Alluvion and dereliction which form along the banks of a river or stream belong to the riparian landowner; accretion and dereliction which form along a body of water that is not a river or a stream belong to the state. See Davis Oil v. Citrus Land Co., 576 So. 2d 495 (La. 1991); LA. CIV. CODE arts. 499-500. (1) Definitions (a) Alluvion: Alluvion is the accretion that forms successively and imperceptibly on the bank of a river or stream. See LA. CIV. CODE art. 499.
(b)
Dereliction: Dereliction is the successive and imperceptible receding of water from the bank of a river or stream. See LA. CIV. CODE art. 499.
(2)
Division of Alluvion: If alluvion forms in front of the property of several owners, each owner is entitled to a fair proportion of the area of the alluvion and a fair proportion of the new frontage, depending on the relative values of the frontage and acreage. See LA. CIV. CODE art. 501.
d.
Avulsion: If an identifiable piece of ground is moved from one place to another by the sudden action or the water of a river or stream, the original owner may claim it. Suit must be brought within a year, or later, if the owner of the bank to which the land has become united has not taken possession. See LA. CIV. CODE art. 502. Change of Course: When a stream changes course all who lost land in the process will be able to take from the riverbed in proportion to the land lost due to the course change. See LA. CIV. CODE art. 504.
e.
3.
Roads a. Generally: Roads may be either public or private. See LA. CIV. CODE art. 457. (1) Public Roads: A public road may either be owned by the public or subject to public use but actually owned by a private person. See LA. CIV. CODE art. 457. Private Roads: A private road is one that is not subject to public use. See LA. CIV. CODE art. 457.
(2) b.
Dedication (1) (2) Formal Dedication: Occurs when there is a valid donation. Statutory Dedication: The most common way that roads become public. Occurs when there is essential compliance with the statute, which requires the recordation of a map or plat that describes streets, etc. and that dedicates the streets to public use. See LA. REV. STAT . 33:5051. Tacit Dedication: If the government maintains a road for more than three years, it becomes public through tacit dedication. See LA. REV. STAT . 48:491. In St. Charles Parish School Board v. P&L Investment Corp., 674 So. 2d 218 (La. 1996), the Louisiana Supreme Court found tacit dedication when the landowner
(3)
permitted the governmental entity to fill the road with shells, then pave it and thereafter maintain it. (4) Implied Dedication: Occurs when lots are sold with reference to streets or when one makes an informal offer to the public to use the road followed by acceptance through actual use. Title remains with the original owner but subject to the publics right of way.
B.
Corporeals and Incorporeals: All things are either corporeal or incorporeal. See LA. CIV. CODE arts. 448, 461, 470 & 473. 1. Incorporeal Things a. Generally: Incorporeals are things with no body that are comprehended by the understanding. See LA. CIV. CODE art. 461. For example, the following are incorporeals: right of inheritance, servitudes, and obligations. Id. Movable or Immovable: Incorporeals can be either movable or immovable. (1) Incorporeal Immovables: Rights and actions that apply to immovables are incorporeal immovables. Mineral leases are incorporeal immovables. See LA. CIV. CODE art. 470. Incorporeal Movables: Rights and actions that apply movables are incorporeal movables. Interests in a juridical person, such as a corporation or a partnership, are movable even if the juridical person owns immovables. See LA. CIV. CODE art. 473.
b.
(2)
2.
Corporeal Things a. b. Generally: Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched. See LA. CIV. CODE art. 461. Corporeal Movables: Corporeal movables are things animate or inanimate that have a body and can be moved or move normally from place to place. See LA. CIV. CODE art. 471.
C.
Movables and Immovables: Things are divided into movables and immovables. See LA. CIV. CODE art. 448. 1. Generally: Significance of distinction between immovable and movable things: a. Scope of Transfer and Encumbrance: Transfer or encumbrance of an immovable includes all of its component parts. See, e.g., LA. CIV. CODE arts. 469 & 1839. Rules to Acquire: Different rules of acquisition. Actions and Rights: Different actions and rights attach to each kind of thing.
b. c.
d.
Public Records Doctrine: Immovables are subject to the Louisiana public records doctrine under which any transfer or encumbrance of an immovable must be recorded to affect third parties.
2.
Immovables a. Generally: The Civil Code classifies the following things as immovables: (1) Land and its Component Parts: Tracts of land with their component parts are immovables. See LA. CIV. CODE art. 462. (a) Component Parts: Component parts include buildings, other constructions, standing timber and ungathered crops when they belong to the owner of the ground. See LA. CIV. CODE art. 463. Integral Parts: Things incorporated into a tract of land, a building, or other construction, so as to become an integral part of it, such as building materials, are its component parts. See LA. CIV. CODE art. 465.
(b)
(2)
Separate Immovables: Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground. See LA. CIV. CODE art. 464.
b.
Buildings as Immovables or Separate Immovables: The Civil Code does not define a building. The Louisiana Supreme Court has identified several criteria as relevant in determining whether a structure is a building: whether it is to be inhabited by people, its cost, its permanence, and prevailing notions of what constitutes a building. See P.H.A.C. Services v. Seaways International, Inc., 403 So. 2d 1199 (La. 1981) (holding that three-story steel offshore living quarters unit was a building even though it was built on blocks at a construction site for transport offshore). (1) Separate Ownership: When there is no unity of ownership between the ground and the building, the building is a separate immovable because article 464 classifies it as such. See LA. CIV. CODE art. 464. Unity of Ownership: When there is unity of ownership between the ground and the building, the building is an immovable because it is a component part of a tract of land. See LA. CIV. CODE arts. 462 & 463.
(2)
c.
Timber (1) Standing Timber: (a) Separate Ownership: Ownership of standing timber separate from the ground is expressly sanctioned by the Civil Code. i) Classification Scheme: When there is no unity of ownership between the ground and the standing timber, the standing timber is an immovable because article 464 classifies it as a separate immovable. See LA. CIV. CODE art. 464. Landowners Right to Demand Removal: The owner of the land can compel the owner of the s eparately-owned timber to remove it within a reasonable time. Willetts Wood Products Co . v . Concordia Land & Timber Co., 169 La. 240, 124 So. 841 (1929).
ii)
(b)
Unity of Ownership: When there is unity of ownership between the ground and the standing timber, the standing timber is an immovable because it is a component part of a tract of land. See LA. CIV. CODE arts. 462 & 463.
(2)
Severed Timber: Of course, once the timber has been cut down, it is a movable. See LA. CIV. CODE art. 463, cmt. d (Trees cut down . . . are movables.).
d.
Other Constructions: The classification of constructions other than buildings that are permanently attached to the ground (for example, a large advertising billboard embedded in concrete) turns on unity or separateness of ownership. See LA. CIV. CODE art. 463. (1) (2) Unity of Ownership: Immovable component parts when owned by the owner of the ground. See LA. CIV. CODE art. 463. No Unity of Ownership: Unlike buildings and standing timber, which are (separate) immovables when there is no unity of ownership, other constructions are movables when there is no unity of ownership. See LA. CIV. CODE art. 464, cmt. d.
e.
Unharvested Crops and Ungathered Fruits (1) Unity of Ownership: Unharvested crops and ungathered fruits of trees are component parts when there is unity of ownership. See LA. CIV. CODE art. 463.
(2)
No Unity of Ownership: Unlike buildings and standing timber, which are (separate) immovables when there is no unity of ownership, unharves ted crops and ungathered fruits of trees are (like other constructions) movables when there is no unity of ownership.
f.
Integral Parts of Land and its Component Parts (1) Generally: A thing that is incorporated into an immovable in such a way as to become an integral part of that immovable, is a component part of that immovable. See LA. CIV. CODE art. 465. Example: For example, building materials lose their separate identity when they are used in the construction of a building, but they are movables until actually incorporated into the immovable. See LA. CIV. CODE art. 472.
(2)
g.
Component Parts of Buildings and Other Constructions: Permanent attachments to buildings and other constructions are component parts thereof. See LA. CIV. CODE art. 466. Article 466 contains two paragraphs which set forth different tests for determining when a thing is permanently attached to a building or other construction. See Equibank v. Internal Revenue Service, 749 F.2d 1176 (5th Cir. 1985); but see Prytania Park Hotel, Ltd. v. General Star Indemn. Co., 179 F.3d 169 (5th Cir. 1999) (test is conjunctive rather than disjunctive). (1) Paragraph OneInstallations (a) Generally: Paragraph 1 of article 466 provides that installations permanently attached to a building or other construction are its component parts, for example, plumbing, heating, cooling, and electrical installations. See LA. CIV. CODE art. 466, para. 1. Equibank Interpretation: The Equibank decision interpreted this paragraph. The question in Equibank was whether a chandelier was an electrical installation. Resolution of the question, according to the court, should be determined by an objective test: societal expectations and prevailing ideas in society. The court then determined that the prevailing idea in todays society is that installations requiring special expertise and knowledge are part of the building and that a chandelier falls into this category. Thus, the court held the chandelier to be an electrical installation, a component part of the building.
(b)
(2)
Paragraph TwoPermanent Attachments: Paragraph 2 of article 466 furnishes a definition of permanent attachments. A thing is permanently attached if it cannot be removed without substantial damage to itself or to the immovable to which it is attached. See LA. CIV. CODE art. 466, para. 2.
h.
Immovables by Declaration: Owners may declare and register things such as appliances, farm equipment, and machinery as component parts of an immovable. See LA. CIV. CODE art. 467. Four conditions must be met: (1) Unity of Ownership : The owner of the immovable must own the machinery, appliance, or equipment which is to become a component part. See LA. CIV. CODE art. 467. Immovable is Not a Home: The immovable may not be a private residence. See LA. CIV. CODE art. 467. Component Services Immovable: The component part must be placed on the immovable for its service and improvement. See LA. CIV. CODE art. 467. Declaration Filed for Registry: The declaration must be filed for registry in the conveyance records of the parish where the immovable is located. See LA. CIV. CODE art. 467.
(2) (3)
(4)
i.
Deimmobilization of a Component Part: A component part of an immovable can be deimmobilized (that is, converted from an immovable into a movable) in three ways. See LA. CIV. CODE art. 468. (1) Damaged (a) Generally: When the component part is so damaged or deteriorated that it can no longer serve the use of the immovable, it is deimmobilized. See LA. CIV. CO D E art. 468. Detachment for Repair: Materials separated from a building for repair with the intention of returning them are not deimmobilized. See LA. CIV. CODE art. 472. Such things remain immovable. Id.
(b)
(2)
Transfer and Delivery: When the owner of the immovable: (a) (b) (c) Transfer: Executes an act translative of ownership, and Deliver: Delivers the component part to an acquirer, and Good Faith: The acquirers in good faith. See LA. CIV. CODE art. 468.
(3)
Detachment and Removal: When, in the absence of rights of third persons, the owner of the immovable detaches or removes the component part. See LA. CIV. CODE art. 468.
3.
Movables a. b. Catch-All Classification: Anything that is not immovable is movable. See LA. CIV. CODE art. 475. Movables by Anticipation (1) Generally: Unharvested crops or ungathered fruits owned by, or encumbered by a security interest held by, someone other than the landowner are movables by anticipation. See LA. CIV. CODE art. 474. Method: The owner of land can mobilize by anticipation crops or fruits that belong to him by an act translative of ownership or by granting a security interest. See LA. CIV. CODE art. 474.
(2)
II.
ACCESSION A. B. Generally: Ownership of a thing includes by accession everything it produces or is united with it, subject to certain exceptions. See LA. CIV. CODE arts. 482-516. Fruits 1. Owners Rights to Fruits: The owner of a thing acquires the ownership of its natural and civil fruits in the absence of the rights of other persons. See LA. CIV. CODE art. 483. a. Fruits Defined: Fruits are things derived from another thing without diminishing its substance. See LA. CIV. CODE art. 551. (Contrast products.) Apportionment of Fruits (1) Natural Fruits: One who is entitled to natural fruits during a particular period acquires ownership of such natural fruits gathered during this period. See LA. CIV. CODE arts. 489 & 555. Civil Fruits: One who is entitled to civil fruits during a particular period acquires ownership of any civil fruits that accrue during this period. See LA. CIV. CODE arts. 489 & 556.
b.
(2)
10
2.
Possessors Rights to Fruits and Products a. Fruits (1) (2) Possessor Defined: Who is a possessor? See Louisiana Acquisitive Prescription Outline. Good Faith Possessor (a) Defined: A possessor in good faith is one who possesses by virtue of an act translative of ownership and who does not know of any defects. See LA. CIV. CODE art. 487. i) Termination of Good Faith: He ceases to be in good faith when these defects are made known to him or an action is instituted against him by the owner for the recovery of the thing. See LA. CIV. CODE art. 487. Contrast Definition in Context of Acquisitive Prescription: Contrast the definition of good faith for purposes of acquisitive prescription. See LA. CIV. CODE art. 487, cmt. b; id. art. 3480; id. art. 3480, cmts. b-c. In the acquisitive prescription context, just-title is a distinct requirement. See id. art. 487, cmts. b-c.
ii)
(b)
Rights of Good Faith Possessor i) ii) Ownership: A good faith possessor owns the fruits that he has gathered. Right to Reimbursement: A good faith possessor does not own ungathered fruits, but he is entitled to reimbursement of expenses for ungathered fruits. See LA. CIV. CODE art. 487.
(3)
Bad Faith Possessor: A possessor in bad faith must restore the fruits he has gathered (or their value), subject to his claim for reimbursement of expenses. See LA. CIV. CODE art. 486.
b.
Products (1) Distinguished from Fruits: Unlike fruits, products result in a diminution of a thing (that is, products are nonrenewable resources). See LA. CIV. CODE art. 488. Ownership: Products belong to the owner. See LA. CIV. CODE art. 488.
(2)
11
(3)
Reimbursement Rights: A possessor in good faithbut not one in bad faithhas the right to reimbursement for expenses for products derived from the thing. See LA. CIV. CODE art. 488.
C.
Accession in Relation to Immovables 1. Generally: Unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above or under it. See LA. CIV. C O D E art. 490; see generally id. arts. 490-506. The following accession rules govern when the owner of a tract of land potentially does not own something directly above or under it. Ownership a. Ownership of Improvements: The Civil Code permits separate ownership of improvements, namely, buildings other constructions permanently attached to the ground, standing timber, and, unharvested crops and ungathered fruits. See LA. CIV. CODE art. 491 & 493. (1) Proving Separate Ownership: Proving separate ownership of the things listed above turns on the person against whom the claim is made. (a) Claims Against Owner of Ground: If the claim is made against the person who owned the ground at the time the improvements were made, the builder must prove that the landowner consented to the improvements. If the landowner did not consent to the improvements, then the improvements belong to the landowner. See LA. CIV. CODE art. 493, para. 1. Claims Against Third Party: If the claim is made against a third party, the builder must prove: i) ii) Consent of Owner: Consent of the landowner. Filing: Timely filing of instrument evidencing separate ownership in the conveyance records of the parish in which the immovable is located. See LA. CIV. CODE art. 491. In the absence of such an instrument, third persons relying on the public records are entitled to assume that these things are component parts of the ground. See LA. CIV. CODE art. 491, cmt. e.
2.
(b)
12
(2)
Right of Separate Owner to Remove Improvements (a) Right to Remove: When the separate owner of improvements no longer has the right to keep them on the land of another, he or she may remove them subject to his or her obligation to restore the property to its former condition. See LA. CIV. CODE art. 493, para. 2. Failure to Remove: If the separate owner does not remove them within 90 days after written demand, the landowner acquires ownership of the improvements and owes nothing. See LA. CIV. CODE art. 493, para. 2. As Between Spouses: When buildings, other constructions permanently attached to the ground, or plantings are made on the separate property of a spouse with community assets or with separate assets of the other spouse, and when such improvements are made on community property with the separate assets of a spouse, this Article does not apply. See L A . CIV. CODE art. 493, para. 3; see Louisiana Community Property Outline.
(b)
(c)
b.
Ownership of Article 465-466 Component Parts (1) Generally: Unlike improvements, other component parts and integral parts under articles 465 and 466 belong to the owner of the immovable. See LA. CIV. CODE art. 493.1. Article 465-466 Component Parts Incorporated by Others With the Landowners Consent (a) Installer May Remove: If incorporated with the immovable owners consent, the installer of the thing may remove them subject to the obligation of restoring the immovable. See LA. CIV. CODE art. 495. If Installer Does Not Remove: If not removed after demand, the owner of the immovable may have them removed at the installers expense or pay and keep. See LA. CIV. CODE art. 495. Third Parties: Claims against third persons are subject to the public records doctrine. See LA. CIV. CODE art. 498.
(2)
(b)
(c) 3.
Claims: One who has lost the ownership of a thing to the owner of an immovable may have a claim against him or a third person in accordance with the following
13
provisions. See LA. CIV. CODE art. 493.2. Note that any claims against third persons are subject to the public records doctrine. See LA. CIV. CODE art. 498. a. Constructions by Landowner With Materials of Another: When the owner of an immovable makes on it constructions, plantings, or works with materials of another, he may retain them, regardless of his good or bad faith, on reimbursing the owner of the materials their current value and repairing the injury that he may have caused to him. See LA. CIV. CODE art. 494. Constructions by Possessors (1) Good Faith Possessors: When constructions, plantings, or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either: (a) (b) (c) (2) Cost: The cost of the materials and the workmanship; or Current Value: Their current value; or Enhanced Value: The enhanced value of the immovable. See LA. CIV. CODE art. 496.
b.
Bad Faith Possessors: When constructions, plantings, or works are made by a bad faith possessor, the owner of the immovable may either: (a) Demand Demolition: Demand their demolition and removal at the expense of the possessor; and, in addition claim damages for the injury that he may have sustained. See LA. CIV. CODE art. 497. Keep and Pay: Keep them and pay at his option either: i) ii) Current Value: Current value of the materials and the workmanship; or Enhanced Value: The enhanced value of the immovable. See LA. CIV. CODE art. 497.
(b)
III.
TRANSFER OF OWNERSHIP A. Immovables 1. 2. When Effective As Between Parties: Immovables are transferred as between the parties when they have confected a written agreement. See LA. CIV. CODE art. 517. When Effective As to Third Parties: Immovables are transferred as to third parties when the instrument of conveyance is filed into the public records. See LA. CIV. CODE art. 517; id. art. 2447; LA. REV. STAT . ANN. 9:2756
14
B.
Movables 1. Generally: Ownership of a movable is transferred voluntarily by a contract between the owner and a transferee purporting to transfer ownership. See L A . C IV. CODE art. 518. When Effective: The transfer is effective between the owner and the transferee according to their agreement. The transfer affects third parties when possession of the movable has been delivered to the transferee. See LA. CIV. CODE art. 518. Two consequences of this rule are spelled out in the article. a. Effect on Subsequent Transferees: If X sells a movable thing to Y but does not deliver, then X sells the same thing to Z and does deliver, Z owns the thing if he or she was in good faith, because the transfer by X to Y was not effective against Z. Effect on Creditors: If M sells a movable thing to N but does not deliver, creditors of M can seize the thing while it remains in Ms possession, because the transfer by M to N is not effective against Ms creditors, who are third parties to that transfer.
2.
b.
C.
The Bona Fide Purchaser Doctrine 1. Lost and Stolen Things a. Rule: If a thing is lost or stolen, the person having possession of it cannot transfer its ownership to another. See LA. CIV. CODE art. 521. (1) Stolen Defined: The word stolen has its own definition in this context. (a) Transfer Without Consent: Stolen means that the true owner did not consent to the possession by another. See LA. CIV. CODE art. 521. Not Fraud: Stolen does not mean that the true owner voluntarily transferred ownership to another as a result of fraud. See LA. CIV. CODE art. 521.
(b)
(2)
Example: Thus, if O loses a thing and F finds it and then sells the thing to B , O will win because of article 521. The same result obtains if F steals the thing from O. Role of Acquisitive Prescription: The rule of article 521 is subject to the laws of acquisitive prescription. Reimbursement Upon Recovery: When the owner is able to recover the lost or stolen thing from the transferee, the owner must reimburse the transferee his purchase price if the transferee bought
(3) (4)
15
the thing in good faith from a merchant who customarily sells such things. See LA. CIV. CODE art. 524. b. ExceptionLegal Sale: If a lost or stolen thing has been sold by authority of law, then the person to whom the thing was sold by authority of law will prevail against the former owner. See LA. CIV. CODE art. 524. No reimbursement is due to any party.
2.
Vices of Consent: If an owner of a thing transfers ownership to a transferee in a transaction tainted with a vice of consent, and the transferee then transfers ownership to a third-party transferee, the third-party transferee gets ownership of the thing if he is in good faith and has paid fair value for the thing. See LA. CIV. CODE art. 522. a. Good Faith: Good faith exists unless the third party knows, or should have known, that the transferor was not the owner. See LA. CIV. CODE art. 523. Fraud as a Vice of Consent: Fraud is expressly excluded from the category of lost and stolen things regulated by article 521. Fraud is covered by article 522, since fraud is one of the vices of consent. (1) Example: Thus, if S sells his ring to T on credit, because T convinces S that T is really X , a rich woman, and if T thereafter sells the ring to U, U will gets ownership over S. Vices of ConsentGenerally: Vices of consent are the subject of Louisiana Civil Code articles 1948-1965.
b.
(2) 3.
Registered Movables: The law is unclear. Under the likely applicable case law, the relative innocence/negligence of the two parties is weighed, and ownership is awarded to the less negligent party.
IV.
CO-OWNERSHIP A. Generally: Ownership of the same thing by two or more persons is ownership in indivision. See LA. CIV. CODE art. 797. 1. 2. B. Presumption of Equality: In the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal. See LA. CIV. CODE art. 797. Comparative Note: Similar to the common-law principle of tenancy in common.
Rights and Duties of Co-Owners 1. Fruits & Products: If fruits or products are produced by one co-owner, then all coowners share the fruits and products of the co-owned thing in proportion to their ownership, after deduction of the cost of production. See LA. CIV. CODE art. 798.
16
2.
Use and Management of Co-Owned Thing a. Generally: Co-owners may use and manage the co-owned thing: (1) (2) By Agreement: According to their agreement. See LA. CIV. CODE art. 801. When No Agreement: When there is no agreement, the use and management of a co-owned thing is in accordance with the following principles: (a) By Destination: According to the destination of the thing. (However, on co-owner cannot prevent another co-owner from making such use of it.) See LA. CIV. CODE art. 802. By Court Order: When partition is not available and the coowners cannot agree on the use or management of the coowned thing, a court may determine its use or management upon petition by a co-owner. See LA. CIV. CODE art. 803.
(b)
b.
Alienation (1) (2) Of Share: A co-owner has freedom of disposition as regards his share of the co-owned thing. See LA. CIV. CODE art. 805. Of Co-Owned Thing: All the co-owners must consent to a lease, alienation, encumbrance, substantial alteration, or substantial improvement of the entire co-owned thing. See LA. CIV. CODE arts. 805.
3.
Right to Reimbursement of Expenses: A co-owner is entitled to reimbursement for necessary expenses and for expenses for ordinary maintenance and repairs, subject to a reduction commensurate with the value of that co-owners exclusive enjoyment. See LA. CIV. CODE art. 806. Substantial Alterations and Improvements a. Generally: Substantial alterations or substantial improvements to the thing held in indivision may be undertaken only with the consent of all the coowners. See LA. CIV. CODE art. 804. When a Co-Owner Makes Improvements Without Consent (1) Improvements Consistent With the Use of the Property: When substantial alterations or improvements are made to co-owned property that are consistent with the use of the property, the coowners may not demand their demolition and removal. They are bound to keep them and at their option to pay to the improver either:
4.
b.
17
(a) (b) (c) (2)
Cost: The cost of the materials and the workmanship; or Current Value: Their current value; or Enhanced Value: The enhanced value of the immovable. See LA. CIV. CODE arts. 804 & 496.
Improvements Inconsistent With the Use of the Property: When substantial alterations or improvements are made to co-owned property that are inconsistent with the use of the property, the coowners may either: (a) Demand Demolition: Demand their demolition and removal at the expense of the improver; and, in addition claim damages for the injury that he may have sustained. See LA. CIV. CODE arts. 804 & 497. Keep and Pay: Keep them and pay at their option either: i) ii) Current Value: Current value of the materials and the workmanship; or Enhanced Value: The enhanced value of the immovable. See LA. CIV. CODE arts. 804 & 497.
(b)
C.
Partition of Co-Owned Property 1. Right to Partition: No one can be compelled to hold property in indivision with another person unless the contrary (a) has been agreed to, or (b) is provided for by law. See LA. C IV. C ODE art. 807. The means is to effect division of co-owned property is a partition of the property. Excluding Partition: Exclusion of partition: a. b. Time: Partition can be excluded by agreement for up to fifteen years. See LA. CIV. CODE art. 807. Indispensability: If the use of the thing held in indivision is indispensable for the enjoyment of another thing owned by one of the co-owners, partition is excluded. See LA. CIV. CODE art. 808.
2.
3.
Modes of Partition a. Voluntary Partition (1) Generally: All co-owners can agree on the mode of partition, or in the absence of such an agreement, a co-owner may demand judicial partition. See LA. CIV. CODE art. 809.
18
(2)
Recission of Extrajudicial Partition: An extradjudicial partition may be rescinded on account of lesion if the 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. See L A . C IV. CODE art. 814.
b.
Judicial Partition (1) Types (a) Partition in Kind: If the thing can be divided into lots of nearly equal value and the total value of the individual lots is not significantly lower that the value of the entire property, the court shall decree a partition in kind. Expert makes a proposed division and the parties draw lots. See LA. CIV. CODE art. 810. Partition by Sale of Thing: When the thing cannot be partitioned in kind, then it is partitioned by licitation (public auction) or by private sale, and the proceeds distributed to the co-owners. See LA. CIV. CODE art. 811.
(b)
(2)
Effect of Partition on Real Rights: When a thing held in indivision is partitioned in kind or by licitation, a real right burdening the thing is not affected. See LA. CIV. CODE art. 812. Imprescriptible: The action for partition is imprescriptible (that is, no liberative prescription). See LA. CIV. CODE art. 817.
(3) V.
DISMEMBERMENTS OF OWNERSHIPSERVITUDES GENERALLY A. Ownership Distinguished 1. Rights of Ownership a. b. c. 2. B. Usus: The right to use and enjoy the property. Fructus: The right to the fruits produced from the property. Abusus: The right to alienate and encumber the property.
Full Ownership: Full ownership includes all three elements.
Servitudes: Servitudes are rights in things less than full ownership. 1. Types: There are two kinds of servitudes: personal servitudes and predial servitudes. See LA. CIV. CODE art. 533. a. Predial Servitudes: A predial servitude is a charge on a servient estate for the benefit of a dominant estate. See LA. CIV. CODE art. 646.
19
b.
Personal Servitudes: A personal servitude is a charge on a thing for the benefit of a person. The personal servitudes are usufruct, and the rights of habitation and of use. See LA. CIV. CODE art. 534.
2.
Distinguishing Types: Is the servitude personal or predial? If the act creating the servitude does not state that it is for the benefit of another estate or for the benefit of a particular person, then: a. b. Advantage Conferred to Estate: If an advantage is conferred to an estate, the servitude is presumed to be predial. See LA. CIV. CODE art. 733. Advantage Conferred to Person: If a right is granted in favor of a person, the servitude is not considered predial unless it is acquired by an owner of an estate as owner for oneself, ones heirs, and assigns. See LA. CIV. CODE art. 734.
VI.
PERSONAL SERVITUDES A. Right of Use 1. Generally: The right of use is a personal servitude that confers a specified use of an estate less than full enjoyment. See LA. CIV. CODE art. 639. The right may be established in favor of a natural person or a legal entity. See LA. CIV. CODE art. 641. Right of use is governed by rules of usufruct and predial servitude to the extent that they are compatible with a right of use. See LA. CIV. CODE art. 645. a. b. Alienation: The right of use is transferable unless prohibited by law or contract. See LA. CIV. CODE art. 643. Termination: A right of use does not terminate upon the death of a natural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract. See LA. CIV. CODE art. 644.
2. B.
Distinguishing from Usufruct: If the act purporting to create a right of use exhausts the utility of the property, then it is a usufruct rather than a right of use.
Right of Habitation 1. 2. Generally: The right of habitation is the nontransferable real right of a natural person to dwell in the house of another. See LA. CIV. CODE art. 630. Establishment and Extinction: The right of habitation is established and extinguished in the same manner as the right of usufruct. See LA. CIV. CODE art. 631. Thus, the right terminates at the death of the right holder and is neither transferable, heritable nor alienable. See LA. CIV. CODE art. 637-638. Duties of Right Holder: The right holder must use the property as a prudent administrator and deliver the property to the owner in the condition in which he received it, ordinary wear and tear excepted. See LA. CIV. CODE art. 635.
3.
20
C.
Usufruct 1. Generally: Usufruct is a real right of limited duration on the property of another. See LA. CIV. CODE art. 535. The holder of the usufructthe usufructuaryhas the right to use the property and to enjoy its fruits, and certain obligations to the owner of the thing (the naked owner). a. b. Comparative Note: A usufruct is analogous to the common law life estate. Nature: A usufruct is an incorporeal thing. It is movable or immovable according to the nature of the thing upon which the right exists. See LA. CIV. CODE art. 540. Usufruct may be established in favor of a natural person or legal entity. See LA. CIV. CODE art. 549. Origin of Usufruct: Usufruct can be conventional (created by juridical act) or legal (created by operation of law). Examples of legal usufructs include the parental usufruct over the property of minor children and the surviving spouse usufruct. See, e.g., LA. CIV. CODE arts. 223 & 890. Multiple Usufructuaries (1) Successive Usufructs: Successive usufructuaries are allowed if the usufructuary exists or is conceived at the time of creation. Example: usufruct to A for life, then to B for life, naked ownership to C. See LA. CIV. CODE art. 546. Joint or Divided Usufruct: A usufruct may be granted to two or more persons in either undivided shares or in divided shares. See LA. CIV. CODE arts. 541. (a) Unidivided Shares: If granted in undivided shares, the termination of a usufructuarys interest inures to the benefit of the survivors. See LA. CIV. CODE art. 547. This is the default rule. Divided Shares: If the usufruct is granted in divided shares, the termination of a usufructuarys interest inures to the benefit of the naked owner.
c.
d.
(2)
(b)
e.
Partition and Usufruct (1) General Rule: Neither a usufructuary nor a naked owner can compel a partition of the dismembered property, except that usufructuaries of the same interest may partition their usufruct and naked owners of the same interest may partition their naked ownership. See LA. CIV. CODE art. 543.
21
(2)
ExceptionCooperative Combination: A person having a share in full ownership may demand partition. See LA. CIV. CODE art. 543. Thus, usufructuary and a naked owner whose interests are complementary can combine their respective interests and be treated as a full owner for purposes of provoking a partition of the property. Id.
2.
Rights and Duties of Usufructuary a. Generally: The nature of the right of usufruct hinges on whether the usufruct is over a consumable thing or over a nonconsumable thing. See LA. CIV. CODE art. 535. Usufruct Over Consumable Things (1) Consumables Defined: Consumables are things that cannot normally be used without their substance being changed, for example, money, food, and stocks of merchandise. See LA. CIV. CODE art. 536. (a) (b) Bonds: Bonds payable to the bearer or to the usufructuary are consumables. Bank Deposits: Matured credits for the payment of a sum of money, such as matured certificates of deposit, are consumables. Promissory Notes: Matured promissory notes, or those payable on demand, are consumables.
b.
(c) (2)
Usufructuary as Owner : The usufructuary becomes the owner of the consumable. See LA. CIV. C O D E art. 538. The usufructuary may consume, alienate, or encumber them as he sees fit, but he must either: (a) (b) Pay: Pay the naked owner when the usufruct terminates the value of the consumed items at commencement, or Replace: Replace them with like things of the same quality and quantity. See LA. CIV. CODE art. 538.
c.
Usufruct Over Nonconsumables (1) Generally (a) Nonconsumables Defined: Nonconsumables are things that can be used without their substance being altered even though natural deterioration may gradually occur, for
22
example, shares of stock, land, a house, animals, vehicles, or furniture. See LA. CIV. CODE art. 537. (b) General Rights and Duties of Usufructuary: The usufructuary of nonconsumables has the right to possess them and to derive the utility, profits, and advantage that they may produce, under the obligation of preserving their substance. See LA. CIV. CODE art. 539.
(2)
Right to Fruits (a) Defined: Fruits are things produced or derived from another thing without diminution of its substance. See LA. CIV. CODE art. 551. Types of fruits include the following: i) ii) (b) Natural: Fruits that are derived from nature. Id. Civil: Revenues such as royalties, interest, or dividends. Id.
Usufructuarys Right to Fruits: Usufructuary is entitled to the fruits. See LA. CIV. CODE art. 550. The right to the fruits begins on the effective date of the usufruct. See LA. CIV. CODE art. 554. Termination: Termination of usufruct and the right to fruits. i) Natural Fruits: If the natural fruits are not severed by the time the usufruct terminates, they will inure to the benefit of the naked owner. See LA. CIV. CODE art. 555. Civil Fruits: Civil fruits accrue day to day. Civil fruits that accrue during the term of the usufruct become the property of the usufructuary even if the fruits cannot be realized until after termination. See LA. CIV. CODE art. 556.
(c)
ii)
(d)
Special Problems i) Stock a) Cash Dividends and Voting: The usufructuary has the right to receive cash dividends declared during the usufruct and to vote the stock. See LA. CIV. CODE art. 552; id. art. 553.
23
b)
Stock Dividends: Stock dividends, splits, redemptions, and liquidating dividends go to the naked owner subject to the usufruct. See LA. CIV. CODE art. 552. Stock Warrants: Stock warrants and subscription rights belong to the naked owner free of the usufruct. See LA. CIV. CODE art. 552.
c)
ii)
Trees a) Generally: Ordinarily, usufruct of land does not include the right to cut down trees, because trees are generally not fruits. Trees for Own Use: The usufructuary may remove trees for his own use on the property. See LA. CIV. CODE art. 560. Timberlands: When the usufruct includes timberlands, the usufructuary may retain proceeds of timber operations so long as he manages the timberlands as a prudent administrator. See LA. CIV. CODE art. 562. In Kennedy v. Kennedy, 699 So. 2d 351 (La. 1997) (on rehearing), the Louisiana Supreme Court defined timberlands as land capable of producing timber in paying quantities, and permitted the usufructuary to initiate farming operations on property. On rehearing, the court ruled that the usufructuary could clear-cut a portion of the land, because clear cutting the only reasonable way to convert the land into timberlands.
b)
c)
iii)
Animals a) Generally: Herds of animals are proper as usufruct property. The usufructuary must manage as a prudent administrator. See LA. CIV. CODE art. 599.
24
b)
Death of Animals: If some of the herd dies, they must be replaced from the increase of the herd. If the entire herd dies without the usufructuarys fault, the naked owner bears the loss. See LA. CIV. CODE art. 599. Alienation of Herd: The usufructuary may sell or trade the herd but at termination must pay the naked owner the value of the herd when sold. Note that disposal is subject to the obligation to act as a prudent administrator and that the naked owner can demand investment of the proceeds under article 618. See LA. CIV. CODE art. 600.
c)
iv)
Mortgages a) Post-Usufruct Mortgage: If a mortgage is put on the property by the naked owner after the usufruct has been created, foreclosure cannot prejudice the usufruct. See LA. CIV. CODE art. 620, para. 2. Pre-Usufruct Mortgage: If the mortgage was on the property before commencement, foreclosure will be allowed and the property can be sold free of the usufruct. See LA. CIV. CODE art. 620. The usufructuary may discharge the indebtedness and claim reimbursement, without interest, at termination.
b)
(3)
Right to Make Improvements (a) With Consent of Naked Owner: Usufructuary may make improvements and alterations to property at his cost with the naked owners written consent. See L A . CIV. CODE art. 558. Without Consent of Naked Owner: If the naked owner withholds consent, the usufructuary may make, at his own cost, any improvements that a prudent administrator would make, after giving notice to the naked owner, and receiving court approval. See LA. CIV. CODE art. 558.
(b)
25
(4)
Right to Alienate Usufruct (a) (b) Generally: The usufructuary can alienate, encumber, or lease his right of usufruct. See LA. CIV. CODE art. 567. Limitation: Such contracts cease at the end of the usufruct. This is similar to the common-law life estate pur autre vie). While usufruct is transferable inter vivos, it is not heritable. See LA. CIV. CODE art. 607 (terminates upon death).
(5)
Right to Alienate Property (a) Generally: Nonconsumables may not be disposed of by the usufructuary without permission of the naked owner, unless the right to dispose is expressly granted. See LA. CIV. CODE art. 568. Creation of Predial Servitudes: A usufructuary may not establish on the estate of which he has the usufruct any charges in the nature of predial servitudes. See LA . CIV. CODE art. 711. (The usufructuary of course may convey a personal right of enjoyment to another for the term of the usufruct. See id. cmt. b.) Exception: The usufructuary may dispose of corporeal nonconsumable movables that are gradually and substantially impaired by use, wear, or decay as long as he acts as a prudent administrator. See LA. CIV. CODE art. 568. i) Usufruct Over Proceeds: The usufruct attaches to the proceeds. The naked owner will be entitled to the value of the property as of the time it was sold but he is not paid until the usufruct terminates. See LA. CIV. CODE art. 568. No Duty to Dispose of Impaired Property: The usufructuary has no duty to dispose of impaired corporeal movables, but rather, may restore them to the owner in the state in which they may be at the end of the usufruct. See LA. CIV. CODE art. 569. If the things are entirely worn out by normal use, he is even relieved of this obligation. Id.
(b)
(c)
ii)
26
d.
Duties of Usufructuary (1) Duty to Make Inventory: Usufructuary must have an inventory made. If usufructuary fails to do so, naked owner may prevent the usufructuarys entry into possession. See LA. CIV. CODE art. 570. Duty to Give Security (a) Generally: The usufructuary may be required to give security in an amount of the value of the property subject to the usufruct. See LA. CIV. CODE art. 571-572. Exceptions: This duty is not applicable to legal usufructuaries or to sellers or donors who have reserved a usufruct. See LA. CIV. CODE art. 573.
(2)
(b)
(3)
Duty to Care for Property: The usufructuary is liable for losses if he fails to act as a prudent administrator. The usufructuary must exercise the care that a careful person would exercise in the administration of his or her own affairs. See LA. CIV. CODE art. 576. The usufructuary is liable for losses resulting from his fraud, default, or neglect. Id. Duty to Make Repairs (a) Ordinary Repairs: The usufructuary must make all ordinary repairs. See LA. CIV. CODE art. 577. The naked owner may compel the usufructuary to make these repairs. See LA. CIV. C ODE art. 579, para. 1. However, the usufructuary may relieve himself of this obligation by abandoning the usufruct. See LA. CIV. CODE art. 582. Extraordinary Repairs i) Distinguishing Ordinary from Extraordinary Repairs: A reconstruction of the whole or of a substantial part of the property is extraordinary; all other repairs are ordinary. See LA. CIV. CODE art. 578. Generally: The naked owner is responsible for extraordinary repairs, but the naked owner cannot be compelled to make them. See LA. CIV. CODE art. 577, para. 2; id. art. 579, para. 2. The usufructuary can make these repairs if he chooses and receive compensation at termination of the
(4)
(b)
ii)
27
usufruct (no interest allowed). See LA. CIV. CODE art. 579. iii) Exception: The usufructuary must pay for extraordinary repairs if caused by his fault. See LA. CIV. CODE art. 577.
(5) 3.
Duty to Pay Taxes: The usufructuary is responsible for all taxes and annual charges. See LA. CIV. CODE art. 584.
Rights and Duties of Naked Owner (See LA. CIV. CODE arts. 603-606) a. Rights of Naked Owner (1) (2) b. Right to Alienate and Encumber: May alienate or encumber the property subject to the usufruct. Right to Grant Real Rights: May establish real rights if they can be exercised without injury to the usufructuary.
Duties of Naked Owner (1) (2) No Interference: May not interfere with the enjoyment of the usufruct. No Alterations: May not make alterations on the property. However, the naked owner may restore damage or make repairs.
4.
Termination of Usufruct a. When Usufruct Terminates (1) Generally (a) Natural Usufructuaries: A usufruct in favor of a natural person terminates: i) Upon Death: Upon the death of the usufructuary, even if the usufruct was given for a term of years. Usufruct is not heritable. See LA. CIV. CODE art. 607. Upon Expiration of Term or Occurrence of Condition: A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition. See LA. CIV. CODE art. 610.
ii)
(b)
Juridical Usufructuaries : A usufruct in favor of a juridical person (that is, a legal entity) terminates:
28
i) ii)
Thirty Years: At the end of thirty years. See LA. CIV. CODE art. 608. Upon Expiration of Term: Upon the expiration of a specified term less than thirty years . See LA. CIV. CODE art. 608. Upon Termination of Entity: Upon the termination of the juridical person (for example, upon dissolution of a corporation or trust). See LA. CIV. CODE art. 608.
iii)
(2)
Destruction of Property: Destruction of the property subject to the usufruct. (a) Total Destruction: Permanent and total loss or destruction of nonconsumables will terminate the usufruct. See LA. CIV. CODE art. 613. Loss Caused by Another: If, however, the loss is caused by the fault of a third party, the usufruct attaches to a suit for damages and ordinarily the usufructuary will be the proper party to bring suit. Money received is subject to the usufruct. See LA. CIV. C O D E art. 614. The naked owner can then demand investment under article 618.
(b)
(3)
Mortgage Foreclosure: Foreclosure of a mortgage placed on the property prior to the creation of the usufruct will result in termination. See LA. CIV. CODE art. 620. Change in Form of Property (a) Involuntary: When there is an involuntary conversion due to the actions of third persons, the usufruct does not terminate and all proceeds will be subject to the usufruct. See LA. CIV. CODE art. 615. The naked owner can demand investment of the proceeds under Civil Code article 618. Consensual Sale: If the property is sold, the usufruct attaches to the proceeds unless the parties agree otherwise. See LA. CIV. CODE art. 616. This article applies when the usufructuary and the naked owner agree to sell the property free of the usufruct. (The naked owner is, of course, free to sell his interest and the usufruct does not terminate.)
(4)
(b)
29
(c)
Insurance Proceeds i) Usufruct Attaches to Proceeds : When proceeds are due because of the loss of the property, the usufruct attaches to the proceeds. See LA. CIV. CODE art. 617. Separately Insured Interests: If the naked owner or the usufructuary separately insures his or her interest, then the proceeds belong to the insured party. See LA. CIV. CODE art. 617. Duty of Usufruct to Insure?: The usufructuary may or may not have a duty to insure and this should be controlled by the duty to be a prudent administrator.
ii)
iii)
(5) (6)
Prescription: Nonuse for ten years will extinguish the usufruct. See LA. CIV. CODE art. 621. Confusion: When the usufruct and the naked ownership are united in the same person, the usufruct terminates by confusion. See LA. CIV. CODE art. 622. Note that the two interests must be coordinate. Abuse: Abuse of the property may result in termination. Abuse is a serious violation of the obligation to preserve the substance of a nonconsumable. Termination is not automatic. See LA. CIV. CODE arts. 623-624. Express Renunciation: Express written renunciation by the usufructuary. See LA. CIV. CODE art. 626.
(7)
(8) b.
Effect of Termination (1) Nonconsumables: The usufructuary must deliver the property to the naked owner, unless the property was permanently and totally destroyed. If the usufructuary had the right to dispose of nonconsumables, he must pay the value the thing had at the time of disposal. See LA. CIV. CODE art. 628. Consumables: The usufructuary must deliver things of the same quantity and quality or the value they had at the commencement of the usufruct. See LA. CIV. CODE art. 629.
(2)
30
VII.
PREDIAL SERVITUDES A. Generally 1. Predial Servitude Defined: A predial servitude is a charge on a servient estate for the benefit of a dominant estate. See LA. CIV. CODE art. 646. a. Estate: An estate is a distinct corporeal immovable. Tracts of land, buildings, and standing timber are estates, but constructions other than buildings are not, and hence are not susceptible of predial servitudes. See LA. CIV. CODE art. 646, cmt. b. Nature: A predial servitude is classified as an incorporeal immovable. See LA. CIV. CODE art. 646.
b. 2.
Types: Predial servitudes may be natural, legal, and conventional (or voluntary). See LA. CIV. CODE art. 654. a. b. c. Natural Servitudes: Arise from the natural situation of estates. See id. Legal Servitudes: Imposed by law. See id. Conventional Servitudes: Established by juridical act, prescription or destination of the owner. See id.
3.
Requirement of Benefit to a Dominate Estate: A benefit must exist to a dominant estate. See LA. CIV. CODE art. 647. However, this benefit need not exist at the time the servitude is created; a possible convenience or a future advantage suffices to support a servitude. See LA. CIV. CODE art. 647. Requirement of Dual Estates a. Inseparability of Servitude and Dominant Estate (1) (2) Generally: A predial servitude is inseparable from the dominant estate and passes with it. See LA. CIV. CODE art. 650. No Separate Alienation or Encumbrance: The right of using the servitude cannot be alienated or encumbered separately from the dominant estate. See LA. CIV. CODE art. 650.
4.
b.
Charge Follows Servient Estate: The predial servitude continues as a charge on the servient estate when ownership changes. See L A. CIV. CODE art. 650. Proximity of Estates Not Required: Neither contiguity nor proximity of estates is required. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other. See L A . C IV. CODE art. 648.
c.
31
d.
Requirement of Separate Ownership: The two estates must belong to different owners. See LA. CIV. CODE art. 646, cmt. b. There can be no servitude if the two estates belong in their entirety to the same owner; a coowner may have a servitude on an estate on which he is the sole owner.
5.
Nature of Real Obligation Imposed by Predial Servitude: The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. However, he may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. See LA. CIV. CODE art. 651.
B.
Natural Servitudes: Natural servitudes arise from the natural situation of estates. See LA. CIV. CODE art. 654. 1. Natural Drainage: An estate below is bound to receive the surface waters that flow naturally from estate above unless the flow has been created by man. See LA. CIV. CODE art. 655. a. b. 2. 3. Obligation of Servient Estate: Can not prevent the flow of water. See LA. CIV. CODE art. 656. Obligation of Dominant Estate: Can not render the servitude more burdensome. See LA. CIV. CODE art. 656.
Estate Bordering on Running Water: Owner of an estate bordering on water may use it as it runs. See LA. CIV. CODE art. 657. Estate Through Which Water Runs: The owner of an estate through which water runs may use it, but he cannot stop it or give it another direction. He is bound to return the water to its ordinary channel before it leaves his estate. See LA. CIV. CODE art. 658.
C.
Legal Servitudes: Legal servitudes are limitations on ownership established by law for the benefit of the general public or particular persons. See LA. CIV. CODE art. 659. 1. Limitations on Ownership a. Keeping Buildings in Repair: The owner of a building is bound to keep it in repair so that it will not fall and cause damage to a neighbor or passerby. See LA. CIV. CODE art. 660; see also LA. CIV. CODE arts. 661-662. Projections: A landowner may not build projections beyond the boundary of his estate. See LA. CIV. CODE art. 663. Rain Drip from Roof: A landowner is bound to fix his roof so that rainwater does not fall on the ground of his neighbor. See LA. CIV. CODE art. 664. Encroaching Buildings: When a landowner in good faith constructs a building that encroaches on an adjacent estate and the owner of that estate
b. c. d.
32
does not complain within a reasonable time after he knew or should have known or complains only after the construction is substantially completed, the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building on payment of compensation for value of servitude and other damages. See LA. CIV. CODE art. 670. 2. Common Enclosures a. Party Walls (1) Generally: The landowner who builds first has the right to rest half of the wall on his or her neighbors land if the wall (1) is made of solid masonry, (2) is at least as high as the first story, and (3) is not more than 18 inches thick plus three inches of plastering. See LA. CIV. CODE art. 673. Upon completion, the wall is a private wall. See id. cmt. f. Creating a Common Wall (a) Generally: Such a wall may become common immediately if the neighbor pays one-half of its cost and at a later time if the neighbor pays one-half of its then-current value. See LA. CIV. CODE art. 674. Presumption: A wall that separates adjoining buildings and rests on two estates is presumed to be common up to the highest point of the lower building. See LA. CIV. CODE art. 675.
(2)
(b)
(3)
Obligations of Co-Owners: The co-owners of a common wall share expenses for necessary repairs in proportion to their interests. See LA. CIV. CODE art. 678. A co-owner may be relieved of obligation to pay for repairs by abandoning his right to use it in writing (provided that there is no construction supported by the wall). See LA. CIV. CODE art. 679.
b.
Common Fences: A fence on a boundary is presumed to be common. When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances. See LA. CIV. CODE art. 685. Common Ditches: A ditch between two estates is presumed to be common unless there is proof to the contrary. Adjoining owners are responsible for the maintenance of a common ditch. See LA. CIV. CODE art. 686.
c.
33
d.
Plants (1) (2) Common Plants: Trees, bushes, and other plants on a boundary line are presumed to be common. See LA. CIV. CODE art. 687. Removal of Boundary Plants: If a tree or other plant (whether common or private) is on a boundary line, either landowner may remove it at his expense if the tree interferes with enjoyment of his property. See LA. CIV. CODE art. 687. Separate Plants (a) Generally: If a tree is inside your property, you may do with it as you please. If tree is on your neighbors property, he has the right to do with it as he pleases. Roots and Branches: However, a landowner may demand that the roots and branches of a neighbors tree or plant that extend onto and interfere with the enjoyment of his property be trimmed at the neighbors expense. See LA. CIV. CODE art. 688.
(3)
(b)
3.
Right of PassageEnclosed Estates a. Right of Passage for Indemnity: An owner of an estate that has no access to a public road may claim a right of passage (for indemnity) over neighboring property to the nearest public road. See LA. CIV. CODE art. 689. (1) (2) Duty to Indemnify: The owner of the dominant estate must indemnify his neighbor for the damage he causes. Id. Extent Servitude: This servitude of passage is limited to the kind of traffic that is reasonably necessary to use the enclosed estate. See LA. CIV. CODE art. 690. Construction of Road: The owner of the dominant estate may construct a road as necessary (he, of course, must pay damages to the owner of the servient estate). See LA. CIV. CODE art. 691. Location of Passage (a) (b) Generally: Shortest route to public road, where least injurious to servient estate. See LA. CIV. CODE art. 692. Relocation i) By Owner of Dominant Estate: The owner of the dominant (enclosed) estate has no right to relocate
(3)
(4)
34
this servitude after it is fixed. See L A. CIV. CODE art. 695 (first sentence). ii) By Owner of Servient Estate: The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate. See LA. CIV. CODE art. 695 (second sentence).
(5)
Prescription: The right for indemnity against the owner of the enclosed estate may be lost by prescription. The accrual of this prescription has no effect on the right of passage. See LA. CIV. CODE art. 696.
b.
Gratuitous Right of Passage: When in the case of partition, or a voluntary alienation of an estate or part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage. See LA. C IV. CODE art. 694. No Right of Passage: If an estate becomes enclosed due to voluntary act of its owner, neither the owner nor his [universal] successors has the right to passage. See LA. CIV. CODE art. 693. In LeBlanc v. Thibodeaux, 615 So. 2d 295 (La. 1993), the Louisiana Supreme Court held that article 693 does not apply to an estate enclosed when a servitude granted in a partition prescribes. Such an estate is entitled to a right of passage for indemnity under article 689.
c.
D.
Building Restrictions 1. Building Restrictions Defined: 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. See LA. CIV. CODE art. 775. In the absence of a viable general plan, the restrictions may be a valid predial servitude. See id. cmt. c. Nature of Building Restrictions: Building restrictions are incorporeal immovables and real rights, and although not servitudes they are likened to predial servitudes. See LA. CIV. CODE art. 777. a. Applicability of Predial Servitude Rules: Rules governing predial servitudes govern building restrictions unless they are incompatible with the nature of building restrictions. See LA. CIV. CODE art. 777.
2.
35
b.
Affirmative Duties Permitted: May impose affirmative duties reasonable and necessary for the enforcement of the general plan and may be enforced by mandatory and prohibitory injunctions. See LA. CIV. CODE art. 778-779.
3.
Establishing Building Restrictions: Building restrictions can only be established by juridical act executed by the owner of an immovable, or by all of the owners of the affected immovables. See LA. CIV. CODE art. 776. Terminating and Amending Building Restrictions a. Generally: Building restrictions be terminated or amended as provided in the act, or by agreement of a specified percentage of owners (one-half if restrictions in place for 15 years; two-thirds if restrictions in place for 10 years). See LA. CIV. CODE art. 780 (revised in 1999). Liberative Prescription: No suit for violation of a restriction may be brought after two years of the commencement of a noticeable violation. After two years, the immovable is freed of the restriction that has been violated. See LA. CIV. CODE art. 781. Abandonment: Building restrictions terminate by abandonment of the whole plan or by the abandonment of a particular restriction. See LA. CIV. CODE art. 782.
4.
b.
c.
5.
Interpreting Building Restrictions: Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. See LA. CIV. CODE art. 783. Louisiana Homeowners Association Act of 1999: For detailed provisions relating to building restrictions for residential planned communities, see LA. REV. STAT . 9:1141.1-9:1141.9.
6.
E.
Conventional Servitudes 1. Generally: Conventional servitudes may be established by an owner on his estate or acquired for its benefit. See LA. CIV. CODE art. 697. They are established on, or for the benefit of, distinct corporeal immovables. See LA. CIV. CODE art. 698. a. Governing Rules: The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the default rules of the Civil Code. See LA. CIV. CODE art. 697. Examples: Examples of common conventional servitudes include support, view, prohibition of view, light, prohibition of light, and passage. See LA. CIV. CODE art. 699-705.
b.
36
c.
Types: Types of conventional servitudes: (1) Affirmative or Negative (a) Generally: Conventional servitudes are classified as affirmative (giving the owner of the dominant estate the right to do something) or negative (restricting the owner of the servient estate from doing something). See LA. CIV. CODE art. 706. Examples i) ii) Affirmative: Right of way, drain, and support. See LA. CIV. CODE art. 706. Negative: Prohibition of building and of the use of an estate as a commercial or industrial establishment. See LA. CIV. CODE art. 706.
(b)
(c) (2)
Relevance: This distinction is relevant as to prescription of nonuse.
Apparent and Nonapparent (a) Generally: Conventional servitudes may be apparent (perceivable by exterior works) or nonapparent (no exterior signs). See LA. CIV. CODE art. 707. Examples i) Apparent: Servitudes evidenced by a roadway, window in a common wall or an aqueduct. See LA. CIV. CODE art. 707. Nonapparent: Prohibition on building on an estate or of building above a particular height. See LA. CIV. CODE art. 707.
(b)
ii)
(c) 2.
Relevance: This distinction is relevant as to the manner in which a servitude may be acquired.
Establishing Conventional Servitudes a. Establishing Conventional Servitudes by Title (1) Generally (a) Comparative Note: Similar to common-law principle of express grant of easement.
37
(b)
Form Required i) Generally: The establishment of a predial servitude by title is an alienation of a part of property to which laws applying to the alienation of immovables apply. See LA. CIV. CODE art. 708. Therefore, conventional servitudes may be established by all acts by which immovables may be transferred. See LA. CIV. CODE art. 722. Substantive Form Requirements: Note that the substantive requirements governing the validity and effect of acts of disposition vary with the qualification of a particular act as onerous or gratuitous. See LA. CIV. CODE art. 708 cmt. d; see also id. art. 1536 (authentic act required for inter vivos donation of immovables); id. art. 1839 (transfer of immovable must be made by authentic act or by act under private signature without necessity of due acknowledgment); id. art. 1837 (defining act under private signature).
ii)
(c)
Persons Who Can Establish Conventional Servitudes i) Mandatary: May establish a predial servitude if he has an express and special power to do so. See LA. CIV. CODE art. 709. Naked Owner: May establish servitude that does not infringe on the rights of the usufructuary. See LA. CIV. CODE art. 710. Any other servitude requires the usufructuarys consent. See id. Usufructuary: May not establish servitudes. See LA. CIV. CODE art. 711. predial
ii)
iii) iv)
Owner for a Term or Condition: May establish servitude, but it ceases with his right. See LA. CIV. CODE art. 712. Co-Owner: May establish servitude only with the consent of all co-owners. If sole co-owner attempts to grant servitude, it is not null but its execution is suspended until the consent of all is obtained. See LA. CIV. CODE art. 714. The grantor
v)
38
co-owner lacks standing to object to the exercise of the servitude. See LA. CIV. CODE art. 715. (d) Property Affected by Conventional Servitudes i) Property Burdened by Existing Servitudes: The owner of the servient estate may grant other servitudes if they do not interfere with existing servitudes. See LA. CIV. CODE art. 720. Mortgaged Property: A predial servitude may be established on mortgaged property. The mortgagee may demand payment of the debt if property value is diminished. If property is sold free of post-mortgage servitude, the acquirer of the servitude has an action for the restitution of its value against the owner who established it. See LA. CIV. CODE art. 721. Public Things : Servitudes may be established on public things, including property of the state. See LA. CIV. CODE art. 723. Multiple Estates: A servitude may be established on one estate for the benefit of several or established on several for the benefit of one. See LA. CIV. CODE art. 724. Reciprocal Servitudes: The title that establishes a servitude for the benefit of a dominant estate may also establish a servitude on the dominant estate for the benefit of the servient estate. See LA. CIV. CODE art. 725. After-Acquired Property: Parties may agree that a servitude will exist on the property if ever acquired by one even though at that time he or she does not own it. See LA. CIV. CODE art. 726.
ii)
iii)
iv)
v)
vi)
(e)
Conventional Alteration of Legal and Natural Servitudes: Legal and natural servitudes may be altered by agreement of the parties if the public interest is not affected adversely. See LA. CIV. CODE art. 729. Interpretation: Doubt as to the existence, extent or manner of exercise of a predial servitude shall be resolved in favor of the servient estate. See LA. CIV. CODE art. 730.
(f)
39
b.
Establishing Conventional Servitudes by TitleDestination of the Owner and Prescription (1)
Means
Other
Than
Establishing Apparent Conventional Servitudes: Apparent servitudes may be acquired (1) by title, see supra, (2) by destination of the owner, or (3) by prescription. See LA. CIV. CODE art. 740. (a) Destination of the Owner i) Generally: When there exists between two estates owned by the same person a relationship that, had they been owned by two different people, would have resulted in the formation of a servitude, then an apparent conventional servitude is formed when the owner ceases to own both of the estates unless there is an express provision to the contrary. See LA. CIV. CODE art. 741. Comparative Note: Similar to common-law principle of implied easement by prior use.
ii) (b)
Acquisitive Prescription i) Generally: An apparent servitude may be acquired by acquisitive prescription of either ten years (with good faith and just title), or thirty years (in the absence of good faith and just title). See LA. CIV. CODE art. 742. Comparative Note: Similar to common law principle of prescriptive easement.
ii) (2)
Establishing Nonapparent Conventional Servitudes (a) Generally: Nonapparent servitudes may be established by title and by destination of the owner, but not by acquisitive prescription. See LA. CIV. CODE art. 739. Destination of the Owner: A nonapparent servitude is established by destination of the owner only if the owner has previously filed for registry a formal declaration establishing the destination. See LA. CIV. CODE art. 741.
(b)
3.
Rights of the Dominant Estate a. Right to Make Necessary Works: The owner of the dominant estate may make at his expense all works necessary for the use and preservation of the
40
servitude. See LA. CIV. CODE art. 744. The owner of the dominant estate may enter the estate for this purpose and deposit materials there. In so doing, he must cause as little damage as possible, and clean up his mess as soon as possible. See LA. CIV. CODE art. 745. b. Right to Compel Servient Estate Owner to Make Works: When the act creating the servitude imposes upon the owner servient estate the duty to make necessary works at his expense, he must do so unless he abandons the servient estate. See LA. CIV. CODE art. 746. Rights Upon Division of Dominant Estate: If the dominant estate is divided, the servitude remains as to each partprovided that the servitude does not become more burdensome on the servient estate. See LA. CIV. CODE art. 747. Right to Freedom from Interference: The owner of the servient estate can do nothing to interfere with the servitude. However, if the original position of the servitude becomes more burdensome, or if the owner of the servient estate is prevented from making useful repairs, he may move the servitude to an equally convenient place and the dominant estate must accept it. See LA. CIV. CODE art. 748.
c.
d.
4.
Extinction of Conventional Servitudes a. Destruction of Dominant or Servient Estate (1) Total and Permanent Destruction: Conventional servitudes are extinguished by total and permanent destruction of the dominant estate or of the part of the servient estate burdened with the servitude. See LA. CIV. CODE art. 751. Temporary Uselessness Does Not Terminate Servitude: If the servitude becomes useless because of a change in the things necessary for its use, it is not extinguished. It resumes its effect when the things are changed back and the servitude becomes useful again (unless prescription has already run). See LA. CIV. CODE art. 752.
(2)
b.
Prescription of Nonuse (1) Generally: Conventional servitudes are extinguished by ten years of nonuse. See L A . CIV. CODE art. 753. (Note that natural and legal servitudes do not prescribe for nonuse. See LA. CIV. CODE art. 758.)
41
(2)
Commencement of Ten-Year Period (a) Affirmative Servitudes: For affirmative servitudes, prescription commences on date of creation, is interrupted by use, and commences again after termination of use. See LA. CIV. CODE art. 754. i) Use by Co-Owner: Use by a co-owner in indivision applies to all co-owners. See L A. CIV. CODE art. 762. Use by Third Person: The servitude is preserved by anyone using it if the use can be construed as appertaining to the dominant estate. See LA. CIV. CODE art. 757. Partial Use: A partial use of the servitude constitutes use of the whole. See LA. CIV. CODE art. 759.
ii)
iii)
(b)
Negative Servitudes: For negative servitudes, prescription commences from the date of contrary act. See LA. CIV. CODE art. 754.
(3)
Suspension of Prescription: If the owner of the dominant estate is prevented from using the servitude by an obstacle which he or she is powerless to remove, then prescription is suspended for up to ten years. See LA. CIV. CODE art. 755. (a) Not Suspended When Building on Dominant Estate is Destroyed: Prescription is not suspended if the servitude cannot be exercised because a building or other construction owned by the owner of the dominant estate is destroyed. See LA. CIV. CODE art. 756. Not Suspended for Disability: The prescription of nonuse is not suspended by the minority or other disability of the owner of the dominant estate. See LA. CIV. CODE art. 763.
(b)
c.
Confusion: The dominant and servient estates must be acquired in their entirety by the same person. See LA. CIV. CODE art. 765. (1) Successions: If an heir has accepted the succession under benefit of inventory, confusion does not take place during the period of deliberation. If the heir renounces the succession, the servitudes continue to exist. See LA. CIV. CODE art. 767. Comparative Note: Similar to common-law principle of merger.
(2)
42
d.
Abandonment by Owner of Servient Estate: The owner of the servient estate may abandon his or her estate or the part of it burdened with the servitude. Abandonment must be evidenced by a written act. The owner of the dominant estate is bound to accept it and confusion takes place. See LA. CIV. CODE art. 770. Renunciation by Owner of Dominant Estate: A conventional servitude is extinguished by the express and written renunciation by the owner of the dominant estate. See LA. CIV. CODE art. 771. Expiration of Term: If the servitude is established for a term or under a resolutory condition, it is extinguished when the term expires or the event happens. See LA. CIV. CODE art. 773. Dissolution of the Right of the Grantor: A predial servitude is extinguished by the dissolution of the right of the person who established it. See LA. CIV. CODE art. 774.
e.
f.
g.
VIII.
ACQUISITIVE PRESCRIPTION AND POSSESSIONGENERALLY A. Acquisitive Prescription 1. Defined: Acquisitive prescription is the acquisition of ownership or other real rights through possession or use for the requisite statutory period. See LA. CIV. CODE art. 3473. Comparative Note: Acquisitive prescription is similar to the common-law principles of adverse possession (for acquisition of ownership), and prescriptive easements (for acquisition of other real rights).
2.
B.
Possession 1. 2. Generally: The cornerstone of acquisitive prescription is possession for a period of time. Possession Defined: Possession is the detention or enjoyment of a thing that one holds or exercises by himself or by another who keeps it in the possessors name. See LA. CIV. CODE art. 3421. Acquiring and Maintaining Possession a. Acquiring PossessionGenerally: To acquire possession, one must: (1) (2) Animus: Intend to possess as owner; and Corpus: Take corporeal possession of the thing. See LA. CIV. CODE art. 3424.
3.
43
b.
AnimusIntent to Possess (1) Generally: To be a possessor, one must intend to possess the thing as owner. See LA. CIV. CODE art. 3424. (a) Rationale: The purpose of this element is to distinguish those who are merely trespassing or occupying land through sufferance of the owner from those who are defying the owners rights. Presumption i) Generally: The law presumes that one who corporeally detains a thing intends to possess it as owner. See LA. CIV. CODE art. 3427; id. art. 3424 cmt. b. This presumption is rebuttable. See id. art. 3424 cmt. b. Exception: This presumption does not operate if that person began to possess in the name of and for someone else. See LA. CIV. CODE art. 3427.
(b)
ii)
(2)
Precarious Possession (a) Precarious Possession Defined: Precarious possession is [t]he exercise of possession over a thing with the permission or on behalf of the owner or possessor. See LA. CIV. CODE art. 3437. Presumption: A precarious possessor is presumed to possess for another even though he may intend to possess for himself. See LA. CIV. CODE art. 3438. Termination of Precarious Possession: The way in which precarious possession is terminated depends upon whether the precarious possessor is a co-owner. i) Co-Owner: A co-owner terminates precarious possession and begins possessing for himself when he demonstrates this intent by overt and unambiguous acts sufficient to give notice to his co-owner. See L A . CIV. CODE art. 3439. The acquisition and recordation of a title from a person other than a co-owner . . . may mark the commencement of prescription. See LA. CIV. CODE art. 3478.
(b)
(c)
44
ii)
Non-Owners: Any other precarious possessor begins to possess for himself when he gives actual notice of this intent to the person on whose behalf he is possessing. See L A . CIV. CODE art. 3439; see also id. art. 3478.
c.
CorpusPhysical Possession (1) Corporeal Possession (a) Generally: Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. See LA. CIV. CODE art. 3425. Acts Sufficient to Constitute Corporeal Possession: The acts sufficient to constitute corporeal possession turns on the use for which the land is destined. For example, if the land is swampland, corporeal possession could be exercised by surveying the property and conducting logging operations.
(b)
(2)
Civil Possession: Once possession is acquired corporeally, it can be maintained by the intention to possess as owner even though the corporeal possession has ceased. This principle is called civil possession. See LA. CIV. CODE art. 3431. 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. See LA. CIV. CODE art. 3426. (In the absence of title, one has possession only of the area that he actually possesses. Id.) (a) Good Title and Good Faith Unnecessary: For constructive possession, the title may be defective and the possessor may be in bad faith. See LA. CIV. CODE art. 3426, cmt. b. Contiguity Required: For the doctrine of constructive possession to apply, the lands must be contiguous. For example, if the land is completely traversed by a navigable river, the lands on both sides of the river are not contiguous because the state owns the beds of navigable rivers. Similar problems exists with public roads if the state has title to the roadbed. No Title, No Constructive Possession: In the absence of title, one possesses only the area one actually possesses,
(3)
(b)
(c)
45
either inch by inch or within natural or artificial boundaries. See LA. CIV. CODE art. 3426, cmt. d. 4. 5. Tacking of Possession: See infra IX.A.3, at 50. Vices of Possession: Possession that suffers from any of the following vices has no legal effect. See LA. CIV. CODE art. 3435. a. Violent Possession: Possession is violent when it is acquired or maintained by violent acts. See LA . C IV. C ODE art. 3436. When the violence ceases, the possession ceases to be violent. Id. Clandestine Possession: Possession is clandestine when it is not open or public. Id. Discontinuous Possession: Possession is discontinuous when it is not exercised at regular intervals. Id. Equivocal Possession: Possession is equivocal when there is ambiguity as to the intent of the possessor to own the thing. Id.
b. c. d. 6.
Loss of Possession: A possessor loses possession if either of the following occurs: a. b. Abandonment: The possessor manifests his intention to abandon possession; or Eviction: The possessor is evicted by another by force or usurpation. See LA. CIV. CODE art. 3433.
7.
Conflicts in Possession: Typic ally, questions of possession arise in the context of competing claims. The Code does not contain rules for prioritizing such claims, but a number of rules exist in case law. a. Only One Possessor at a Time: Two people cannot be in possession of the same property at the same time. Thus, once someone acquires possession, he or she remains in possession until that possession is lost through abandonment or eviction. When a second person comes along during the first persons period of possession, that second persons acts will not cause the second person to acquire possession unless those acts constitute an eviction of the first persons possession. See Liner v. Louisiana Land & Exploration Co., 319 So. 2d 766 (La. 1975). Jurisprudential Hierarchy: The following hierarchy exists among acts of possession: (1) Competing Acts of Corporeal Detention: As between competing acts of corporeal detention, the person who acquires possession first has an advantage since the second person must evict the first in order for the second person to acquire possession. The
b.
46
second possessors acts must effectively prevent the first person from exercising acts of possession for at least a year. See Evans v. Dunn, 458 So. 2d 650 (La. App. 3d Cir. 1984). (2) Corporeal Detention Trumps Civil and Constructive Possession: As between acts of corporeal detention, on the one hand, and acts of civil or constructive possession on the other, corporeal detention trumps civil or constructive possession. Ellis v. Prevost, 19 La. 251 (1841). Competing Acts of Constructive Possession: As between competing constructive possessions, the case law is uncertain. However, the first person to establish constructive possession can be evicted only by acts of corporeal possession. See Gilmore v. Schenck, 115 La. 386, 39 So. 40 (1905); Whitley v. Texaco, Inc., 434 So. 2d 96 (La. Ct. App. 5th Cir. 1983).
(3)
8. IX.
Possessory Actions: See Code of Civil Procedure Bar Review Outline (discussing right to possess and prerequisites to possessory action).
ACQUISITIVE PRESCRIPTION OF IMMOVABLES A. Ten-Year Acquisitive Prescription: Ownership and other real rights in immovables may be acquired by the prescription of ten years. See LA. CIV. CODE art. 3473. 1. Generally: The elements required for ten-year acquisitive prescription of immovables are as follows: a. b. c. d. 2. Possession for Ten Years: Possession for ten years Good Faith: Good faith; Just Title: Just title to the property; Thing Susceptible: A thing susceptible of acquisition through acquisitive prescription. See LA. CIV. CODE art. 3475.
Elements Explained a. b. Possession: Possession for ten-years. On what constitutes, possession, see supra Part II (Possession). On tacking of possession, see infra. Good Faith (1) Generally: A possessor is in good faith, if he reasonably believes in light of objective considerations that he is the owner of the property. See LA. CIV. CODE art. 3480. (a) Test: Would a person of ordinary business experience believe that the transferor is the owner of the property?
47
(b)
Considerations : Look to objective factors, such as reasonableness of the price, whether the property is sold without warranty of title. Effect of Quitclaim Deed i) Quitclaim Defined: A quitclaim (an importation from the common law) is a transfer of all the rights the transferor may have in certain property, without a warranty that the transferor has any interest at all. See LA. CIV. CODE art. 2502, cmt. b. Effect: A quitclaim deed does not automatically destroy the presumption of good faith. It i s a factor to consider, however, in evaluating the transferees good faith. See LA. CIV. CODE art. 2502.
(c)
ii)
(2)
Presumption of Good Faith: Good faith is presumed. This presumption may be rebutted with proof that the possessor knows, or should know, that he is not the owner of the thing that he possesses. See LA. CIV. CODE art. 3481. This presumption is not defeated merely by showing that the possessor suffered from an error of fact or an error of law, unless such error destroys either the honesty of the possessors actual belief or else the reasonableness of his belief. See LA. CIV. CODE art. 3481, cmt. c. Timing of Good Faith: As a general rule, good faith is needed only at the commencement of the possession. If the possessor discovers defects and becomes in bad faith after taking possession, will be irrelevant. See LA. CIV. CODE art. 3482. Good Faith and Title Examinations: Title examinations have never been required for a buyer to be in good faith. See generally LA. CIV. CODE art. 3481, cmt. e. However, before Phillips v. Parker, 483 So. 2d 972 (La. 1986), it was very difficult to prove good faith if you conducted a title search. This was so because of pre-Phillips case law that imputed to the would-be buyer knowledge of all information in the public records whenever he, or someone on his behalf, conducted a title search. Phillips repudiated this case law.
(3)
(4)
48
c.
Just Title (1) General Requirements: A just title is a juridical act sufficient to transfer ownership or another real right. See LA. CIV. CODE art. 3483. (a) Substantive: The juridical act must be sufficient to transfer ownership or other real right, for example, an act of sale, donation, dation en paiement (giving in payment), or exchange, but not a lease or loan. In short, the act must be one that would have conveyed ownership or established a real right had it been executed by the true owner. See LA. CIV. CODE art. 3483, cmt. b. Formal: The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated. See LA. CIV. CODE art. 3483.
(b)
(2)
Special ProblemTransfer of an Undivided Interest (a) Generally: An act purporting to convey ownership to an undivided interest in an immovable is a just title only as to the interest purported to be transferred. See LA. CIV. CODE art. 3484. Hypotheticals: Compare the following two hypotheticals: i) Hypothetical One: A owns an undivided 1/4 interest in Blackacre. He executes deed in favor of B, conveying to B only an undivided 1/4 interest in Blackacre. B has just title only to the 1/4 interest mentioned in the deed. Because A actually owns an undivided 1/4 interest, B gets not only just title but good title from A. However, B cannot successfully argue that he has just title to entire Blackacre on theory that he thought A conveyed the whole thing. Variation: A owns only an undivided 1/4 interest in Blackacre, but executes a deed in favor of B, purporting to convey full ownership of Blackacre to B. Here, B obtains good title to the undivided 1/4 from A, and perhaps just title to the whole of Blackacre.
(b)
ii)
49
d.
Thing Susceptible of Prescription: The final requisite for ten-year acquisitive prescription is that the thing be one that is susceptible of acquisition by prescription. See LA. CIV. CODE art. 3475. (1) Private Things: All private things are susceptible of prescription unless legislation provides otherwise. See LA. CIV. CODE art. 3485. However, prescription does not run against the state even if the thing is private. See Todd v. State of Louisiana, 456 So. 2d 1340 (La. 1983); 465 So. 2d 713 (La. 1985). Common and Public Things : Common and public things are not susceptible of prescription. See LA. CIV. CODE art. 3485, cmt. b.
(2) 3.
Tacking of Possession a. Tacking Defined: When possession is transferred, the possession of the transferor is added (tacked) to the possession of the transferee as long as there has been no interruption of possession. See LA. CIV. CODE art. 3442. Juridical-Link Requirement: Tacking occurs when possession is transferred from a transferor to a transferee. Possession can be transferred only if there is a universal or particular title evidencing the transferees right to succeed the transferor. The case law tends denominates this as the juridical-link requirement. See LA. CIV. COD E art. 3441 (Possession is transferable by universal title or by particular title.); id. art. 3442 cmt. d (Taking of possession presupposes a juridical link.) (1) Juridical link in Universal Succession: In a universal succession, the juridical link is supplied by the legal right of the universal successor to stand in the shoes of the decedent. See LA. CIV. CODE art. 3442, cmt. b. Juridical Link in Particular Succession (a) Generally: In a partic ular succession, the juridical link is supplied by the act transferring ownership or ownership from the transferor to the transferee. See LA. CIV. CODE art. 3442, cmt. b. Special Tacking RulesGood/Bad Faith and Particular Successors: The Louisiana Supreme Court has held that good faith is necessary for a particular successor to tack for purposes of ten-year acquisitive prescription. See Bartlett v. Calhoun, 412 So. 2d 597 (La. 1982). Consider the following hypotheticals:
b.
(2)
(b)
50
i)
Hypothetical OneNo Tacking: A begins possessing Swampacre in 1980 and meets all the criteria for ten-year acquisitive prescription. His good faith is lost in 1981 when he learns that B really owns Swampacre. Nonetheless he c ontinues to possess. In 1990 A gets ownership through acquisitive prescription. Hypothetical TwoTacking by Universal Successor: C begins possessing Whiteacre in 1980 and meets all the criteria for ten-year acquisitive prescription. His good faith is lost in 1981 when he learns that D really owns Whiteacre. He immediately tells his son E . Nonetheless C continues to possess until his death in 1988. His son E is his sole heir and succeeds to all of Cs rights, which include Cs status as a possessor in whose favor ten-year acquisitive prescription has begun to run. In 1990 E gets ownership through acquisitive prescription. Es good faith/bad faith is not relevant because E is a universal successor. Hypothetical ThreeTacking by Particular Successor. F begins possessing Greenacre in 1980 and meets all the criteria for ten-year acquisitive prescription. His good faith is lost in 1981 when he learns that G really owns Whiteacre. He immediately tells his best friend H. Nonetheless F continues to possess until he sells Greenacre to H in 1988. H goes into possession of Greenacre immediately after the sale, and commences a new possession for purposes of ten-year acquisitive prescription. In 1990 H does not get ownership through acquisitive prescription. Hs good faith is relevant under Bartlett because H is a particular successor. In order to acquire ownership of Greenacre through ten-year acquisitive prescription H would have had to have been in good faith. Had he been in good faith, he could have tacked Fs good-faith possession and he would have acquired ownership in 1990.
ii)
iii)
51
(3)
Exception to Juridical Link RequirementBoundary Tacking: 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. See LA. CIV. CODE art. 794; see also LA. CIV. CODE art. 3442, cmt. d (Despite the nonexistence of a juridical link, tacking is permitted in boundary actions within the limits of Article 794 . . . .).. (a) (b) Limited Application to Boundaries: This special rule of tacking applies only in the boundary context. Hypothetical: Assume that X buys Blackacre in 1960. He immediately goes into possession and possesses north to the fence that exists along what X thinks is his northern boundary. Unbeknownst to X, the northern boundary is 100 feet south of the fence. X possesses up to the fence until 1975 when he sells Blackacre to Y. Y in turn begins possessing up to the fence. Y continues to possess up to the fence to this day. i) General Tacking Principles: Under general tacking principles, Y cannot tack Xs possession onto his own possession as to the 100 foot strip because there is no juridical link (that is, there no title linking the possession of X with the possession of Y vis-a-vis the 100 foot strip). Special Boundary-Tacking Rules: Article 794 permits tacking in the boundary context. Keep in mind that article 794 does require the following for tacking to occur: a) Some Juridical Link: There must be a title as to some of the land. This requirement supplies the juridical link that permits tacking to occur. (The juridical link in this hypothetical relates to land adjacent to the disputed track, rather than the usual case of a juridical link to the disputed track.) Poss ession Within Visible Bounds: The parties must possess within visible bounds.
ii)
b)
52
4.
Interruption of Prescription a. Loss of Possession: Acquisitive prescription is interrupted when possession is lost unless the possessor recovers possession within one year or even later if he recovers by means of an action brought within one year. See LA. CIV. CODE art. 3465. Prescription Runs Against All: Prescription runs against absent persons and imcompetents, including minors and interdicts. See LA. CIV. CODE art. 3474.
b.
B.
Thirty-Year Acquisitive Prescription 1. Generally: Ownership and other real rights in immovables can be acquired by thirtyyear prescription without the need of either just title or possession in good faith. See LA. CIV. CODE art. 3486. a. Applicability of Ten-Year Acquisitive Prescription Rules: The rules of tenyear acquisitive prescription govern thirty-year acquisitive prescription to the extent that they are compatible with thirty-year acquisitive prescription. See LA. CIV. CODE art. 3488. Acquisitive Prescription by Governmental Body: In Parish of Jefferson v. Bonnabel Properties, Inc., 620 So. 2d 1168 (La. 1993), the Louisiana Supreme Court (in a 4-3 decision) held that the Louisiana Constitution does not allow either a parish or other political subdivision of the state to acquire title to immovable property through thirty-year acquisitive prescription.
b.
2.
Irrelevance of Constructive Possession: For purposes of acquisitive prescription without title, possession (generally) extends only to the land that has actually been possessed. See LA. CIV. CODE art. 3487.
X.
ACQUISITIVE PRESCRIPTION OF MOVABLES A. B. Generally : Ownership and other real rights in movables can be acquired through three- or ten-year acquisitive prescription. See LA. CIV. CODE art. 3489. Three-Year Acquisitive Prescription: The requisites for three-year acquisitive prescription are: 1. 2. 3. 4. Possession: Possession as owner; Good Faith: Good faith; Juridical Act: An act sufficient to transfer ownership, and Possession: Possession without interruption for three years. See LA. CIV. CODE art. 3490.
53
C.
Ten-Year Acquisitive Prescription: One who possesses a movable for ten years as owner acquires its ownership through ten-year acquisitive prescription without just title or good faith. See LA. CIV. CODE art. 3491. * * * END * * *
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LOUISIANA P ROPERTY LAW

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(a) (b) (c) (2)

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Full Ownership: Full ownership includes all three elements.

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Relevance: This distinction is relevant as to prescription of nonuse.

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Establishing Conventional Servitudes by TitleDestination of the Owner and Prescription (1)

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