3. Code I: Property Flashcards
1
Q
Classification of Property
A
common / public / private
immovable / movable
2
Q
Public Things
A
- territorial sea + arms of the sea
- waters and bottoms of natural navigable water bodies
- roads
3
Q
Navigable Waters
A
= susceptible to commercial use
no right to trespass on private property to access the public water body
4
Q
Distinguishing Between River/ Lake
A
- size and shape
- depth
- historical designation
- current
5
Q
Transfer or encumbrance of a thing always includes its ________ _______.
A
Transfer or encumbrance of a thing always includes its component parts.
6
Q
Immovables Regardless of Unity of Ownership
A
- land
- buildings
- standing timber
- integral parts
- attachments under art. 466
7
Q
Buildings Classification
A
- unity = immovable component part
- no unity = “separate immovables”
NOT OCPAs
8
Q
Building Factors
A
PHAC Services v. Seaways:
- cost
- purpose
- durability
- prevailing notions
9
Q
Unless otherwise provided by law, ownership of a TRACT of LAND carries with it the ownership of ______________________________________.
A
Unless otherwise provided by law, ownership of a TRACT of LAND carries with it the ownership of everything that is directly above or under it.
10
Q
Standing Timber Classification
A
- unity = immovable component part
- no unity = “separate immovables”
11
Q
Integral Parts Test
A
merger with another thing AND loss of separate identity
12
Q
Effect of Integral Part Classification
A
A thing that is incorporated into a tract of land, building, or other construction
In such a way so as to become an integral part of the thing to which it is incorporated
is a component part of that thing, and thus is classified as an immovable.
13
Q
Other Constructions Permanently Attached to the Ground
A
= manmade constructions that are not buildings
movables when there is NO unity of ownership (opposite for buildings/ standing timber)
14
Q
OCPA attached to the ground by a different owner with the consent of the owner of the ground
A
= owned by the party who attached them
15
Q
Attachments under art. 466
A
- component parts (permanent attachments) of buildings
- component parts (permanent attachments) of other constructions not a building
- component parts so attached, removal would cause damage
16
Q
Permanent Attachments of Buildings
A
always immovable
things that are attached to a building, and, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use
i.e. doors, shutters, gutters, cabinetry, and systems such as plumbing, heating, cooling, and electrical
17
Q
Permanent Attachments of Constructions other than Buildings
A
things that are attached to it and serve its principal use
18
Q
Substantial Damage Permanent Attachments
A
attached EITHER to a building or other construction to such a degree that they cannot be removed without substantial damage to themselves or to the building or other construction
19
Q
Immovables with Unity of Ownership
A
- OCPA
- unharvested crops and ungathered fruits
20
Q
Immovables by Declaration of the Owner Test
A
An owner has some limited ability to declare machinery, appliances, or equipment immovable under Louisiana law.
(1) there must be unity of ownership between the appliances and the immovable
(2) the immovable may not be a private residence
(3) the item must be actually placed on the immovable and used for its service and improvement
(4) a declaration of immovability must be filed in the parish where the immovable is located
21
Q
De-Immobilization
A
a thing that has become a component part may nonetheless become movable again
- by damage or deterioration
- by detachment or removal (exception = no detach/removal if 3P has a right in the thing, unless GF)
22
Q
Movables
A
anything not classified as an immovable under LA law
23
Q
Accession
A
rights and duties related to things that are produced by another thing or united with that other thing
24
Q
Fruits
A
Things produced by or derived from another thing WITHOUT diminution of its substance.
- A person who has a right to fruits owns all natural fruits GATHERED during the existence of his right.
- Civil fruits accrue BY DAY.
25
Good Faith Possessor for Accession
one who possession **by virtue of an act translative of ownership** and is **not aware of any defect** in his ownership
- entitled to any fruits gathered AND for reimbursement for expenses related to any fruits that remain ungathered
26
Bad Faith Possessor for Accession
A bad faith possessor is **aware of a defect in his ownership and ignores it.**
- only gets reimbursement of expenses for gathered fruits and NOTHING for ungathered fruits
27
Products
diminish the substance of the thing from which they were taken
*Neither good faith or bad faith possessors OWN products. GF can get reimbursement for expenses*
28
Transfer of Immovables
require a **WRITING**
not effective against 3P unless **FILED** in public records of parish where immovable is situated
29
Transfer of Movables
NO writing required
affects 3P upon ACTUAL DELIVERY
30
Bona-Fide Purchaser Doctrine
applies when 3P purchases in GF from **MERCHANT who customarily sells such things**
31
Accession to Immovables: Appropriation and Reimbursement
When the owner of the improvements no longer has the right to keep them on the land of another, the **improver may remove things, so long as he restores the land to its original condition**.
If he fails to remove them after written demand, the **owner of the immovable may assert ownership upon sending a second written notice dated 90 days after the first**. If the owner asserts ownership in this manner, he OWES NOTHING for improvements.
32
Accession to Immovables: Rights/ Remedies to Component Parts
Things that are integral to the building or component part **belong to the owner of the immovable, regardless of consent.**
But the maker may de-immobilize by detachment or removal in the absence of third party rights.
If he fails to do so and a demand for removal is made, the owner of the immovable can compel removal at the maker’s expense, or keep the thing and either pay the current value of the materials and workmanship or the enhanced value of the thing.
33
Accession to Immovables: Constructions/ Improvements by Good Faith Possessors
The owner CANNOT compel a good faith possessor to remove improvements made by GF possessors.
He MUST keep then pay the cost of materials and workmanship, their current value, or the enhanced value of the land.
34
Accession to Immovables: Constructions/ Improvements by Bad Faith Possessors
the owner of the immovable CAN demand demolition and removal at the possessor’s expense
OR keep the thing and pay current value of the materials and workmanship or the enhanced value of the thing.
35
Co-Ownership
AKA ownership in indivision
full form of ownership, and thus co-owners collectively hold EQUAL/ UNDIVIDED rights of usus, fructus, and abusus in a co-owned thing
36
Division of Fruits in Co-Ownership
Fruits are divided among co-owners in accordance with their share in the co-owned thing.
If one co-owner performs work that generates the fruits, he is entitled to deduct his expenses, EXCLUDING the value of his labor, from the fruits he pays to other co-owners.
37
Rights of Use in Co-Ownership
- co-extensive rights of use, regardless of their percentage of shares
- must use the thing in a way that does not deny the others the right to use
- cannot use the thing inconsistent with its destination
38
Expenses in Co-Ownership
- shared in proportion to co-owned shares
- necessary expenses for ordinary maintenance and repairs are shared by co owners
- entitled to reimbursement but can be offset by co-owners' **exclusive use** of a thing
39
Abusus
- sell
- destroy
- make major alterations
40
Co-Owners' Rights to Abusus/ Alienation
- co-owner can alienate, encumber, or lease his **undivided** interest.
- CANNOT do so to the ENTIRE thing without consent of all the co-owners
41
Who can demand partition?
ANY co-owner **can demand partition at any time**
**naked owner** CANNOT obtain partition against one who holds an undivided interest
42
Substantial Alterations and Improvements
considered act of abuse and technically cannot be done without consent of co-owners but may be entitled to reimbursement depending on the circumstances
43
Reimbursement in Co-Ownership
**Necessary expenses and expenses for ordinary maintenance/repairs are shared**
- one who pays for it is entitled for reimbursement from the others in proportion to their shares
44
Reimbursement for Substantial Alterations Consistent with the Use of Property
co-owners CANNOT demand demolition (maker treated like GF possessor)
- owe either the cost of materials and workmanship, their current value of the materials and workmanship, or the enhanced value of thing
45
Reimbursement for Substantial Alterations Inconsistent with the Use of Property OR Over Express Objection
co-owners CAN demand demolition and removal at the maker’s expense AND claim damages (maker treated like BF possessor)
- OR can keep and pay the value of the materials and workmanship or pay for the enhanced value of the immovable
46
Excluding Partition
- by co owner by K for up to 15 years
- by donor for 5 years from date of donation
47
Partition
- voluntary OR judicial
- in kind OR by licitation
48
Partition in Kind
*preferred by court*
Court REQUIRED to order when:
1. co-owned thing can be divided into as many lots of nearly equal value as there are co-owners AND
2. the total value of all the co-owned lots is not significantly lower than the value of the co-owned thing in indivision
49
Partition by Licitation
Generally occurs by **public sale by sheriff’s office**
Court can order a private sale with assistance of real estate agent
NEW 2021 LAW: if a co-owner is absentee or does not consent to partition by private sale, court REQUIRED to order **private sale** and give co-owners **FIRST PRIORITY** of that sale
50
Predial Servitude
charge of a servient estate for the benefit of a dominant estate
The estate on which a predial servitude is established must be a **distinct corporeal immovable** (land/buildings/standing timber)
- MUST have separate ownership and can only be created when the servient estate and the dominant estate are **owned by different persons**
- affirmative or negative
- natural, legal, or conventional
51
Types of Predial Servitudes
1. Natural
2. Legal
3. Conventional
**IF NO FACTS INDICATING ADJACENT ESTATES/ DOM ESTATES THEN NOOOOT A PREDIAL SERVITUDE**
52
Legal Servitude
created as a matter of law, even absent any contractual agreement among the owners of the affected estates
53
Enclosed Estates
Legal servitude will be created as a matter of law for public necessity
duty = neighboring estate must furnish landlocked owner **closest distance to public road**
- not free
- traffic or utility
- shortest distance AND also least injurious
54
Relocation of Legal Servitude
- owner of dominant estate CANNOT move it
- owner of servant estate can demand location change to **move to more convenient place AT HIS EXPENSE**
55
Gratuitous Passage
law provides this type of legal servitude when:
1. partition of co-owned property created enclosed estate OR
2. when landowner sells landlocked portion to another
DOES NOT APPLY TO SELLER WHO ENCLOSES HIMSELF
56
Seller who encloses himself
IS NOT ENTITLED TO A ASSERT A LEGAL SERVITUDE OF ANY FORM
57
Legal Servitude for Encroaching Building
(1) builder in **good faith** when constructing encroaching building
AND
(2) owner of land **DID NOT COMPLAIN** within reasonable time or else failed to complain *before substantial completion of the building*
*still in the discretion of the court and will have to COMPENSATE owner of land encroached upon*
58
Conventional Servitude
voluntary contractural understanding of the parties
59
Manner of Creation of Conventional Servitudes
1. by title
2. by destination of owner
3. by acquisitive prescription
60
Conventional Servitude by Title
- writing required + recorded to effect 3P
- scope / extent of rights determined by title
61
Conventional Servitude by Destination of Owner
when owner sells half of property -- separate ownership required
- APPARENT = automatic
- NONAPPARENT = owner must file registry of formal dedication in advance
62
The establishment of a predial servitude by title is an _________ of a part of property to which laws applying the alienation of immovables apply.
A naked owner and co-owners can establish conventional servitudes but may not _________________ or MUST obtain __________ ________________.
The establishment of a predial servitude by title is an **ALIENATION** of a part of property to which laws applying the alienation of immovables apply.
A naked owner and co-owners can establish conventional servitudes but may not **INFRINGE ON THE RIGHTS OF THE USUFRUCTUARY** or MUST to obtain **CONSENT OF ALL CO-OWNERS**.
63
Conventional Servitudes by Acquisitive Prescription
ONLY **APPARENT** servitudes
64
Acquisition of Servitudes
**Apparent servitudes** may be acquired by title, by destination of the owner, or by acquisitive prescription.
**Nonapparent servitudes** may be established by title and by destination of the owner but not by acquisitive prescription.
65
Rights of the Dominant Estate in a Predial Servitude
- making necessary works
- compelling the servient estate to make works
- freedom from interference from the servient estate
66
_________ ________ cannot sell the full estate if there is a usufruct over the property – they do not have the rights of full ownership.
**Naked owners** cannot sell the full estate if there is a usufruct over the property – they do not have the rights of full ownership.
67
Extinction of Servitudes
1. total and permanent destruction
2. prescription of nonuse
3. Confusion
4. abandonment
5. renunciation
68
Prescription of Nonuse for Predial Servitudes
10 YEARS (partial use/ use by co-owners satisfies)
- affirmative = begins at date of creation
- negative = begins at violation
69
Confusion of Predial Servitude
dominant and servient estate owners become same person
70
Abandonment - Predial Servitudes
must be in writing
71
Renunciation - Predial Servitudes
must be done by owner of dominant estate
72
Personal Servitudes
create a real right in favor of a person (rather than an estate)
73
Types of Personal Servitudes
1. Usufruct
2. Right of Habitation
3. Right of Use
74
Usufruct
real right of limited duration on the property of another
- usus/ fructus = held by usufructuary *(exclusive right of possession)*
- abusus = held by naked owner
75
Creation of Usufruct
- juridical act
- by matter of law
*can be successive OR joint*
76
Rights and Duties of Usufruct
MUST ACT AS A PRUDENT ADMINISTRATOR
depends on the classification of the thing usufruct is over:
- consumables
- non consumables
77
Usufruct over Non-consumables
- usus and fructus NOT ABUSUS
DUTY = must preserve nonconsuambles and **act as a prudent administrator**
- cannot lease the property but may lease their right
- TERMINATION: must turn over the nonconsumables to the naked owner
78
Usufruct over Consumables
- usus / fructus / AND abusus of things subject to usufruct
- TERMINATION: must pay **value of the things at commencement** of the usufruct OR **replace them** with same quality and quantity
79
Usufruct's Right to Fruits
- right to **natural fruits** GATHERED
- right to **civil fruits** ACCRUED
80
Sale of Thing Subject to Usufruct
- can only sell RIGHT
- involuntary sale = usufruct terminates (unless excess proceeds then usufruct continues over those)
81
Right of Usufructuary to Make Improvements
Substantial alterations or improvements to the thing burdened by the usufruct are NOT within the right of use, and therefore the usufructuary may not generally make them.
Substantial alterations or improvements are ALWAYS made at the ***sole expense of the usufructuary***, even if the naked owner does consent.
If the usufructuary obtains **written consent** from NAKED OWNER, the improvements are OK and may be used as an offset against amounts owed to the naked owner for damage.
82
Judicial Permission for Substantial Improvements of Usufruct
must show that prudent administrator would make such improvements
determination wholly at judge's discretion
83
Usufructuary's Right of Disposition
CAN sell/ alienate/ encumber his RIGHT of usufruct
Generally, no right to DISPOSE property burdened by usufruct EXCEPT:
* can use consumables
* can dispose if granted express right
* can dispose of corporeal movables generally and substantially impaired by use/wear/decay so long as he acts as prudent administrator
84
Duties of the Usufructuary
(1) To make an **INVENTORY** to determine what property exists – the naked owner may prevent him from going into possession until he does this
(2) **Security** in conventional usufruct in the amount of the value of the property subject to the usufruct
(3) **Act as a prudent administrator**, and to pay for damages for failure to act
(4) To make and pay for all **ORDINARY maintenance and repairs** *(naked owner is responsible for EXTRAORDINARY repairs)*
(5) To pay **annual or periodic charges and assessments**, including property taxes
85
Extraordinary Repairs
= reconstruction of the whole or substantial part
86
Naked Owner and Repairs
- naked owner may compel the usufructuary to make ORDINARY repairs
- naked owner is responsible for extraordinary repairs that require reconstruction of the whole or substantial part
- UNLESS those repairs are the fault of the usufructuary
87
When does Usufruct Terminate?
creator generally determines
IF NOT: (automatic):
- if in favor of person - @ death / 30 years for juridical person
- for Rx of nonuse - 10 years
- upon confusion
- total destruction
- renunciation by usufructuary
(court decides):
- for waste or abuse
88
Usufruct continues over some other property by principal of REAL SUBROGATION for:
- tort damages for destruction of thing by 3P
- insurance proceeds for destroyed prop
- excess proceeds after mortgage creditor paid
- $ received for expropriation of prop
89
Effect of Termination of Usufruct
usufructuary must turn over all non consumables to naked owner + value of consumables at commencement of usufruct
90
Termination of Usufruct: nonconsumables destroyed by usufruct's fault
usufruct must give naked owner value they would've had at termination
91
Termination of Usufruct: corporeal movables gradually impaired and sold for less
usufruct must give naked owner difference between value and money received at disposition
92
Termination of Usufruct: consumables
usufruct must give naked owner value at commencement of usufruct
93
Right of Habitation
real right to live in the house of another
- must be **natural person**
- must act as a **prudent administrator**
- **non-transferable**
94
Right of Use
*aka right of passage*
like a predial servitude, a right of use imposes a charge on land for another’s benefit
- creates real rights
- benefits a person, not a dominant estate
95
Difference between Predial Servitude and Right of Use
(1) the right of use is transferrable (separately from the land)
(2) the right of use does not terminate at the death of a natural person OR at dissolution/ 30 years for a juridical person
*both can prescribe for nonuse*
96
Possession
established by **corpus** and **animus**
97
Corpus
physical acts of use, detention, or enjoyment over a thing
quality and frequency of those activities need to be analyzed in the context of the property at issue
98
Animus
intent to possess as owner
legal rebuttable presumption of animus (asking permission destroys animus)
99
Precarious Possessor
NOT A POSSESSOR AT ALL (on prop with permission, so no animus)
- successive
- continues until terminated
"neighborly gesture" = implied permission provides basis for precarious possessor
100
Termination of Precarious Possession
- co owners = **overt and unambiguous acts** sufficient to provide notice
- everyone else = give **actual notice**
101
Fictions of Possession
- civil
- constructive
102
Civil Possession
Relinquishes corpus but retains animus.
103
Constructive Possession
Corporeal possession and a title,
and the possessor possesses everything within the bounds of that title.
104
Loss of Possession
EITHER:
1. **Abandonment** (loss of both corpus and animus) OR
2. **Eviction** (possessor physically ousted from his property or that another engages in acts on the property that are strong enough to put the possessor on notice that his dominion is being seriously challenged)
105
Conflicting Possessions
2 people cannot corporeally possess at same time
possessor keeps possession until evicted
corporeal trumps all, civil trumps constructive, earlier constructive trumps later
106
Occupancy
1. taking possession
2. of a corporeal immovable
3. that belongs to no one
107
Acquisitive Prescription
acquisition of ownership or another real right in a thing merely by possessing a thing for a period of time
*The requirements of acquisitive prescription depend on whether the property upon which the possessor is trying to prescribe is immovable or movable, and whether the possessor is in good or bad faith.*
108
Acquisitive Prescription of Immovables in Good Faith
requires proof of:
(1) a thing susceptible of acquisition by prescription
(2) possession for **10 years**
(3) good faith AND
(4) just title
109
Good Faith (Acquisitive Prescription)
when the possessor reasonably believes, in light of objective considerations, that he owned the property he possesses
*an objective and subjective belief*
110
Just Title
does not mean valid title – rather, it must appear valid on its face
111
Tacking of Possession
the ability of a successor to add to his ancestor’s possession to make out a requisite period of years for acquisitive prescription
*requires a juridical link*
112
Acquisitive Prescription of Movables in Good Faith
(1) a thing susceptible of acquisition by prescription
(2) possession for **3 years**
(3) good faith
(4) an act translative of ownership.
113
Acquisitive Prescription of Immovables in Bad Faith
(1) a thing susceptible of acquisition by prescription; AND
(2) possession for **30 years**
*This form of prescription applies when there is an absence of title.*
114
Acquisitive Prescription of Movables in Bad Faith
(1) a thing susceptible of acquisition by prescription; AND
(2) possession for **10 years**
115
Conflict of Laws - Immovables
- in LA = LA law
- other state = law of the situs
116
Conflict of Laws - Movables
law of the state in which the movables was situated when acquired
117
Building Restrictions
- create real rights and impose charges on property pursuant to a general plan that governs building standards, specified uses, and improvements
- typically a developer creates them and files the document in the public records
118
Enforceability and Reciprocity of Building Restrictions
- BRs are enforceable against all lots, even if created by developer; they may bind a lot owner that did not agree to them in a juridical act;
- BRs impose a charge on an area and every lot is bound
- BRs are charges imposed on lots for the benefit of everyone and have an inherent reciprocal quality
119
Building Restrictions vs. Zoning Ordinances
- ZO created via public law / BRs are created via private law
- BR can require more than a ZO can require of lot owners, but it cannot require less – meaning a BR cannot trump a ZO
- BRs are similar to predial servitudes, but they can impose AFFIRMATIVE duties on lot owners
120
Creation of Building Restrictions
- **by the owner of the immovable** (typically a developer) = creates restrictions before he sells the lots, files the BRs in the public records, and restrictions become effective against all lots sold;
- **by agreement of the owners of the affected lots** = unanimity is required
121
Prescription of Building Restrictions
- terminates a BR for a particular lot if 2 years have passed from a noticeable violation;
- *prescription liberates ONLY the lot in issue and only for that BR*
122
Abandonment of Building Restrictions
- if significant number of violations occurred and have not been contested, entire subdivision is freed from BR
- failure must be widespread, but no bright-line rule
123
Ambiguity of Building Restrictions
Any doubt as to existence, validity, or extent of BR is resolved in favor of unrestricted use of immovable.
124
Termination of Building Restriction
- if BR provides rules for modification or termination – those govern
- in absence, default rules apply:
- restrictions in existence for 15 years – need agreement of at least ½ of the affected owners;
- restrictions in existence for less than 15, but at least 10 years – need agreement of at least 2/3 of affected owners.
- restrictions in existence for less than 10 years – require unanimity.
125
Enforcement of Building Restriction
- any lot owner may sue for an injunction compelling other lot owners to comply with BR;
- if there is a homeowner association, that may also sue.
126
LA Homeowners' Association Act
- applies to residential planned community that requires membership in a homeowner association;
- BRs may be established by agreement of ¾ of lot owners;
- modifications that make restrictions more onerous for lot owners requires 2/3 of lot owners to agree;
- modifications that make restrictions less onerous for lot owners requires only ½ of owners to agree.
127
Servitude by Title Requires a Writing ... but Writing Exception May Apply When
when there has been delivery of the property (e.g. handing off the key) and the transferor admits the right under oath
128
Acquisition of a Predial Servitude by Acquisitive Prescription
A predial servitude can be acquired through acquisitive prescription if it is apparent, meaning that it is perceivable by exterior works.
129
When does Precarious Possession end?
precariousness continues until he gives actual notice to the one who gave permission of his intent to possess on his own behalf
130
If an estate becomes enclosed by the voluntary act of its owner . . .
neither the owner nor his successors have the right to passage.
131
Non Apparent Servitudes by Destination
non-apparent servitudes can only come about by destination if recorded in advance of the alienation of the property
132
Co-owners are permitted to make substantial improvements and alterations, including the construction of improvements . . .
only with the consent of all co-owners.
133
Servitude granted in favor of “her heirs and assigns”
= language indicating a predial servitude, or one that runs with the land, was intended.
134
Once acquired, predial servitudes “run with the land,” . . .
which means that they bind subsequent owners of the servient and dom- inant estates.
135
Obstruction of Servitude and Preventing its Use / Obstructing Right of Passage
holder of the dominant estate may sue the obstructor to force demolition and removal, or at least its relocation out of the servitude area
(the owner of the servient estate may do nothing tending to diminish the use of the servitude)
136
Relocation of the Servitude: Test
(1) must show that the original location has become more burdensome for the servient estate
AND
(2) must provide “another equally convenient location” for the servitude in order to relocate it
(servient estate it bears all expenses incurred in relocating the servitude)
137
Ownership of Constructions on Leased Property
constructions made on the leased premises are the property of the lessee, unless and until the lessor appropriates ownership of them using the procedures detailed in article 2695
(consent to the construction by the lessor is irrelevant to ownership)
*it does not matter precisely what type of component part the processing facility is, or whether the lessor gave consent to build it. The lessee owns it regardless.*
138
Lessee's Rights and Obligations to Constructions on Leased Property
Lessee has the right to remove the construction at the conclusion of the lease, provided that he restores the property to its former condition.
If lessee does not remove it, owner may either appropriate ownership of the stand by reimbursing lessee the lesser of the cost or enhanced value of the stand, or owner may demand its removal.
If lessee fails to remove after demand, owner can then remove the stand and charge lessee the removal cost, or appropriate ownership at no cost after an additional notice by certified mail.
139
Pipeline Classification
the pipeline is either an “other construction permanently attached” under Louisiana Civil Code article 463 or an “integral part” of the land under Civil Code article 465.
To become an immovable integral part under article 465, an item must be both merged with the land and must lose its separate identity, such that it becomes part and parcel of the immovable itself.
[apply facts] The pipeline is distinguishable from the soil itself and does not become “part and parcel of it.”
More likely, the pipeline is an “other construction permanently attached to the ground” (“OCPA”). Other constructions permanently attached are classified as immovable by the Louisiana Civil Code only when they belong to the owner of the ground.
Thus, we must determine who owns the pipeline to determine its classification. Under Louisiana Civil Code article 493, other constructions permanently attached to the ground with the consent of the owner of the ground are owned by the party who attached them.
140
Usufruct Given Express Right to Alienate
When a usufructuary has been given the express right to dispose of nonconsumables subject to the usufruct, he may do so. Essentially, the usufruct of nonconsumables is converted into a usufruct of consumables over the cash proceeds of the sale.
141
Consent to the Building of a thing... but its not recorded!
With respect to third persons, both consent and proper recordation are required. In the absence of recordation, an other construction permanently attached to the ground is conclusively presumed to belong to the owner of the ground.
142
Usufructuary Who makes Substantial Improvements
expenses for improvements or alternations done on the property subject to the usufruct must be done at the sole cost of the usufructuary. The naked owner is not required to pay for these alterations.
Usufructuary may owe money damages. A usufructuary has use of the thing subject to the usufruct, but he is not permitted to make improvements or alterations without either the written con- sent of the naked owner or the permission of the court.
Naked owner may sue him for failure to act as a prudent administrator in making renovations without authority, and usufructuary will be liable for any damages caused by his failure.
143
Building Restriction Definition
charges imposed by owner of immovable pursuant to general plan governing building standards, uses, and improvements
Plan must be **feasible** and **capable of being preserved**.
144
Rules applicable to Predial servitudes govern building restrictions unless . . .
incompatible with the nature of building restrictions.
145
Establishing building restrictions
requires a juridical act of owner(s) of immovable(s)
146
Terminating/amending building restrictions
- by terms of the act
- by agreement (% of owners)
- prescription
147
Termination of BR by Agreement
- If restrictions in place for 15 years = ½ of owners
- If restrictions in place for 10 years = 2/3 of owners
148
Enforcement of building restrictions
= injunction and damages
All landowners in a subdivision have the right to enforce.
149
Residential Planned Communities (“RPC”) are Subject to LHAA, which has special rules that displace general provision of LACC.
When?
RPC is a real estate development in which the owners of separate lots are mandatory members of an association by virtue of ownership.
150
Special Rules for RPC
(if RPC document is silent, the following rules apply; each lot is 1 vote):
- ¾ vote to establish building restrictions
- 2/3 vote to make restrictions more onerous
- 1/2 vote to terminate/reduce building restrictions
