CODE I Flashcards
(290 cards)
1
Q
Natural Person
A
Natural personality commences from the moment of live birth and terminates at death.
live birth is characterized by crying or respiration
Termination of personality can be established by licensed doctor’s certification (of irreversible cessation of spontaneous respiratory and circulatory functions or, if kept alive artificially, irreversible and total cessation of brain function), disappearance under circumstances such that death seems certain (plane crash), or judicial declaration of death can be obtained from a court if the person has been absent for five years.
An unborn child is considered to have natural personality for whatever relates to its interests from the moment of conception but must be born alive for natural personality to commence.
2
Q
Juridical Person
A
Louisiana law defines a juridical person as an entity to which law attributes personality such as states, municipalities, corporations, by-laws, and partnerships governed by provisions of their charters rather than being indistinguishable from its members.
Ova are juridical persons until implanted in the womb at which point they become natural persons.
3
Q
Domicile
A
A person may have multiple residences but only one domicile
To change domicile, a person must move his residence (actual presence required) to another location with the intent to make it his habitual residence.
Could argue that: placement of furniture, matrimonial home, travel to residence to reconcile, husband’s moving ahead to prepare home.
4
Q
Domicile of Spouses/Minors/Interdicts/Military Personel/Venue/Subject Matter Jur
A
Barbri P&D outline p. 4-5
5
Q
Prerequisites for valid marriage
A
For a marriage to be valid there must be a valid marriage ceremony in which both parties express consent in the absence of legal impediments or vices of consent.
6
Q
Covenant Marriage
A
Barbri P&D outline p. 8-9
7
Q
Relative Nullity of Marriage
A
A marriage may be declared relatively null if a party does not expressly consent or they suffer from a vice of consent such as duress through actual/threatened violence or criminal prosecution, lacking capacity of discernment (insanity, drunkenness, mental retardation), or minority w/o parental consent.
A relatively null marriage is valid until it is officially declared null by the court and such a marriage produces civil effects until it is officially declared null, nullity must be declared in a judicial proceeding by the party whose consent was not free.
8
Q
Absolutely Null Marriage
A
A marriage is absolutely null when contracted without a valid marriage ceremony (performed by a qualified third-party celebrant, both parties in attendance, prior marriage license may be required, signed certificate, 2 competent witnesses) or where there is a legal impediment (such as bigamy, same-sex marriage, and incest)
An absolutely null marriage is devoid of all legal effect from the moment of its inception. A judicial declaration of nullity is not required but civil effects can arise and flow to one or both parties under the putative marriage doctrine.
9
Q
Putative Marriage Doctrine
A
The putative marriage doctrine potential applies to an absolutely null marriage when one of the spouses was in good faith in contracting the marriage.
Good faith is defined as the honest and reasonable belief that there exists no legal impediment to the marriage.
The putative marriage doctrine applies to errors of law (null divorce) as well as errors of fact (no divorce).
There is a presumption of good faith for the party making a putative marriage claim, the burden to prove otherwise is on the party challenging the putative marriage.
A party’s first-hand actual knowledge of an impediment vitiates good faith and second-hand knowledge of an impediment imposes a duty to inquire.
10
Q
Civil Effects of Putative Marriage
A
The civil effects of a putative marriage are the same as in a normal marriage except with regard to property that would have been community property had the marriage been valid in cases where there was a first spouse (If putative wife is in good faith, then putative wife acquires husband’s half of community property; If both spouses are in good fatih, then husband’s heirs acquire his half of community property and the first wife and putative wife split the remaining half.)
The civil effects of putative marriage continue as long as the putative spouse remains in good faith unless bigamy is the impediment at issue in which case the civil effects continue after nonbigamous spouse learns of impediment until either an official declaration of nullity or nonbigamous spouse remarries.
11
Q
Provisional and Incidental Proceedings in Action of Nullity
A
Barbri P&D outline p. 12-13
12
Q
Incidents of Marriage
A
Husbands and wives owe each other the mutual duties of negative and positive fidelity, support (necessities of life), assistance (care for ill/infirm). These duties are not enforceable during marriage and cannot be derogated from by contract.
Marriage does not change either spouse’s surname, but married persons may use the surname of either or both spouses (widowed/divorced/remarried woman may use former spouse’s name).
13
Q
Termination of Marriage
A
Marriage terminates only upon the death of either spouse, a judicial declaration of nullity if the marriage is relatively null, a court order authorizing the spouse of a presumed dead active duty military personnel to remarry, or a judgment of divorce.
14
Q
No-Fault Divorce
A
Article 102 permits the divorce the parties without fault after parties have lived apart continuously for the specified time period following the service of petition for divorce or a written waiver of service.
Article 103(1) permits a simpler alternative to an action under Article 102 where the parties need only live separate and apart continuously for the specified time period before the petition is filed.
If there are no minor children of the marriage being terminated, the parties must live separate and apart continuously for 180 days.
If there are minor children of the marriage being terminated, the parties must live separate and apart continuously for 365 days unless a court finds that the spouse physically or sexually abused the other spouse or the child or there is already an injunction in place when the divorce is filed protecting the spouse or child from abuse (in which case 180 days).
15
Q
No-Fault Divorce Procedure
A
Barbri P&D outline p. 15-16, 17
16
Q
Fault-Based Divorce
A
Article 103(2) provides for an immediate adultery divorce (no physical separation required), but requires specific proof leading fairly and necessarily to the conclusion that adultery has been committed through corroborated testimony (admission by guilty spouse not sufficient) but sexual intercourse is not necessary for adultery.
Article 103(3) provides for an immediate felony-conviction divorce (no physical separation required) where one spouse is convicted of a felony and sentenced to either death or hard labor.
17
Q
Defenses to Divorce
A
Article 102 procedural defect.
Reconciliation extinguishes a divorce action and is characterized by resumption of life together with the mutual intent to resume the marriage. Sex is not sufficient, must have intent. For fault-based divorces, some element of forgiveness or condonation after knowledge of offense may amount to reconciliation.
The mental condition of an at-fault spouse can be a defense if it caused or induced the faulty conduct.
18
Q
Actions Incidental to Divorce
A
In a divorce action under article 102 or 103 other matters may be resolved as well
this includes injunctions against encumbering, waisting, selling or disposing of community property, prohibiting a spouse from physically or sexually abusing spouse or children, and against harassment, violence or contact with spouse or children)
this also includes child custody, visitation and support, spousal support, and use of former matrimonial domicile (even if separate if spouse has physical/legal custody of minor children of marriage until earliest of partition of community or 180 days, can use community spousal residence until further order of the court) and use of community movables and immovables (in line with the best interest of the family and including personal property such as food and eating utensils deemed necessary for safety and well being of spouse and children in spouse’s custody.
19
Q
Domestic Abuse Assistance Act
A
Barbri P&D Outline p.20
20
Q
Interim Spousal Support
A
The purpose of interim spousal support is to maintain the status quo for both parties without unnecessary economic dislocation until a determination of the amount of final support can be made.
The spouse seeking interim spousal support, the “claimant” bears the burden of proving entitlement.
For an award of interim spousal support, a court considers the needs of the claimant spouse (income is primary, don’t consider assets unless they can be invested w/o risk most courts don’t consider earning capacity of stay-at-home spouse) the ability of the other party to pay (income, assets and maybe liabilities/earning capacity), and the standard of living the parties enjoyed while they were married.
fault is irrelevant to a determination of interim spousal support, the primary income earner pre-separation is typically the payor.
The trial court is vested with a great deal of discretion in determining whether and how much interim spousal support is appropriate and will only be overturned for abuse of discretion.
Interim spousal support is terminated by the judgment awarding/denying final spousal support or 180 days, whatever is shorter, can be extended upon showing of good cause.
Interim spousal support may be modified if there is a material change in circumstances (remarriage not sufficient) or terminated if no longer necessary.
Waiver of interim spousal support in a matrimonial agreement is against public policy and thus invalid.
21
Q
Final Spousal Support
A
The court may award final periodic support to a party free from fault based on the needs of the claimant, the ability of the other party to pay, and the standard of living that the parties enjoyed while they were married.
In making a determination of final spousal support the court shall consider all relevant factors which may include: income and means of both parties including liquidity of assets, financial obligations of the parties, the earning capacity of the parties, the effect of child custody on earning capacity, “rehabilitative support” temporally limited support to help claimant acquire appropriate training/education/employment, the age and health of the parties, the duration of the marriage (habituation to dependency as if effects earning capacity), and the tax consequences to either/both parties.
The claimant must prove freedom from fault pre-petition that is both of a serious nature and independently contributory or a proximate cause of the termination (Article 102(2) or (3) divorce, intemperance or cruelty that renders living together insupportable (once incident sufficient but should be a series, reconciliation condones acts but future acts can “revive” series; but not incompatibility, nagging, fussing, criticism), abandonment without lawful cause and refusing to return after request (not leaving with lawful cause or living apart by agreement; abandonment can be “constructive” if forced/ordered out), public/infamatory defamation, attempted murder, fugitive spouse, intentional nonsupport in necessitous circumstances, failure to live up to marital duties of fidelity.
Condonation, mental illness, mental incapacity, physical infirmity, reconciliation, and provocation (?) can be a defense to fault.
The amount of final periodic support awarded shall not exceed one-third of the obligor’s net income.
Same standards for modification/termination as interim spousal support.
22
Q
Enforcement/Procedure/Jurisdiction/Preemption for Support Awards/Modifications
A
Barbri P&D outline p. 26-27
23
Q
Contribution to Earning Capacity of Spouse
A
A party that has made financial contributions to their spouse’s training or education during marriage that increased the other spouse’s earning power has a claim to recoup those financial contributions if they did not benefit from such during the marriage.
The claim arises when the divorce action is filed and prescribes 3 years from the signing of the judgment of divorce.
24
Q
Calculation/Characterization/Nature of Financial Contribution Claim/Award
A
Barbi P&D outline p. 28
25
Child Custody Standard
In a proceeding for divorce, or thereafter, the court shall award custody of a child in accordance with the best interests of the child, the following factors bear on the court’s finding of best interest:
Emotional ties - love affection and emotional ties between party and child
Ability to nurture - Capacity and disposition of party to give love and guidance, and to continue the child’s education and rearing.
Ability to provide - Capacity of party to meet the child’s material needs.
Prior relationship - Length of time child has lived in stable and adequate environment and the desirability of continuing that environment.
Stability - Permanence, as a family unit, of existing or proposed custody home
Moral Fitness - Moral fitness of party, as it affects child.
Health - Party’s mental and physical health
History - Home, school and community history of child
Preference of child - reasonable preference of the child if old enough to decide.
Cooperation with other party - willingness and ability of party to foster child’s relationship with other party.
Location - Distance between parties’ residences.
Past Caregiver - Responsibility for care of child previously exercised by parties.
26
Child Custody Preference and Allocation of Authority and Responsibility
Barbri P&D outline p. 30-31
27
Change in Child Custody
In determining the requirements for a change in a custody arrangement depends upon whether the custody decision was a consent judgment or a considered decree.
in a consent judgment the trial court does not consider evidence of parental fitness and the party seeking modification need prove only that there has been a material change in circumstances and that the change is in the best interests of the child.
if the custody decision was a considered decree, which does take into account evidence of parental fitness, the court will apply the Bergeron standard and the party seeking modification must show that a change in circumstances has occurred such that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree or that harm is likely to be caused by a change in environment is substantially outweighed by its advantages to the child.
Some courts have applied the Bergeron standard to motions to modify the designation of a domiciliary parent.
28
Custody of Illegitimate Children
Barbri P&D outline p.31-32
29
Visitation by Noncustodians
Barbri P&D outline p. 32-33
30
Interim Custody Pending Litigation
courts can only grant ex parte interim custody if immediate and irreparable injury to the child is imminent, any such order can last only 30-45 days and the other parent must be given visitation.
31
Evaluation of Person in Custody/Visitation Proceeding
The court may order an evaluation of a party or child in a custody or visitation proceeding for good cause shown by a mental health professional selected by the court who serves as a witness of the court and may be cross-examined by both parties.
32
Custody/Visitation Hearings/Mediation/Appeals/Compliance; Moving Child Residence; Military Parent
Barbi P&D outline p. 33-34
33
Venue/Jurisdiction for Child Custody/Visitation (UCCJEA)
Barbri P&D outline p. 35-36
34
Child Support
Barbri P&D outline p. 36-40, 47
35
Biological Filiation - Proof of Maternity
Maternity may be established by that the child was born of a particular woman by a preponderance of the evidence (testimony of witnesses to the fact of birth, documentary/scientific evidence).
Under Louisiana law the mother is the woman who gives birth to the child not necessarily the biological mother as compensated surrogacy contracts are null under LA law and you can adopt renounced ovum. But there is an exception for in vitro fertilization of a surrogate woman who is related by blood or affinity to mother and/or father.
36
Biological Filiation - Presumption of Paternity
Presumption of Paternity of Husband - The husband of the mother is presumed to be the father of a child born during the marriage or within 300 days of the termination of the marriage even if remarried by that point.
37
Biological Filiation - Subsequent Marriage
A man who marries the mother of a child is presumed to be the father of that child if he acknowledges the child by authentic act or signs the birth certificate with the mother’s consent, but not if the child is filiated to another man in which case the mother must file a contestation action.
Can overcome this this presumption with a disavowal subject to a 180-day preemptive period which begins from the day of the marriage or acknowledgement, whichever is later.
38
Biological Filiation - Formal Acknowledgment by the Father
A man may acknowledge a child, who is not filiated to another man, as his own by authentic act or by signing the birth certificate.
The acknowledgement creates a presumption of paternity which can be invoked only on behalf of the child but does not create a presumption in favor of the man acknowledging the child.
If the man executing the act of formal acknowledgment is not the biological father of the child, the act of acknowledgment is absolutely null and without legal effect.
Formal acknowledgment may be revoked (anyone can bring the action) without cause within 60 days by submitting a sworn statement or in a judicial hearing or within 2 years upon proof by clear and convincing evidence that the act was induced by fraud, duress, mistake, or the man is not the biological father (this does not affect prior child support due, paid, or owing).
Informal acknowledgment can only be used as evidence to prove paternity.
39
Biological Filiation - Child’s Action to Establish Paternity
A child may file suit to prove paternity even though the child is presumed to be the child of another man (LA recognized dual paternity).
If the father is living the child must prove paternity by a preponderance of the evidence, if the action is instituted after the father’s death the child must prove paternity by clear and convincing evidence.
The child must file within one year of the death of the alleged father for succession purposes only, otherwise unlimited.
Relevant evidence that is admissible to prove paternity includes blood tests (presumed at 99.9% certainty), informal acknowledgment, and cohabitation of the mother and father at the time of conception.
40
Biological Filiation - Avowal Action
A man can file suit to establish his paternity of a child by a preponderance of the evidence (same evidence as in the child’s avowal action).
If the child is presumed to be the child of another man the action must be filed within one year of the birth of the child unless the mother in bad faith deceived teh father regarding his paternity, then one year from the day the father knew or should have known of his paternity but not later than ten years after the child’s birth or one year from child’s death.
If the child is not presumed to be the child of another man the avowal action may be brought at any time but no later than one year from child’s death.
41
Biological Filliation - Disavowal Action
A husband or his heirs can overcome the presumption of paternity by filing an action to disavow paternity and showing clear and convincing evidence that he is not the father. The husband’s testimony is not necessary, but if used, must be corroborated by other evidence (lay witnesses, scientific/medical evidence).
The husband presumed to be the father must file a disavowal action within one year after he learned or should have learned of the birth of the child unless he lived apart from mother for 300 days preceding birth, in which case he must file within 1 year of receiving written notice of his alleged paternity. If husband dies, heirs have one year from death (or first notice).
If the father fails to bring timely action for disavowal the presumption of his paternity becomes irrebuttable even if another man is later proved to be the biological father.
Husband cannot disavow a child born as a result of assisted conception to which he consented.
If the mother is remarried at the time of the child’s birth and the first husband or his successor disavows, the second husband is presumed to be the father (can disavow within one year of final/definitive judgment of first husband’s disavowal.
42
Biological Filiation - Contestation action
The mother of the child can also overcome the presumption of paternity of a first husband in a contestation action. This requires her to prove that the former husband is not the father of the child and that her present husband is the father by showing clear and convincing evidence of such in with testimony corroborated by other evidence (lay witnesses, scientific/medical evidence). A contestation action also requires that the subsequent husband acknowledge the child by authentic act or signing of the birth certificate.
The mother must file a contestation action within 180 days of her getting married to the subsequent marriage and within two years from the birth of the child.
Applied to Facts - must have been married to first husband at most 300 days before birth of child and remarried to new husband before the child was two and must institute the contestation within 180 days
43
Biological Filiation - Post Mortem Artificial Conception
A child born after the death of a sperm or egg donor is deemed to be the donor’s child if born to the surviving spouse within three years of death and the donor spouse authorized in writing that the spouse could use the gametes.
44
Filiation by Adoption
An adopted person is the legitimate child of his adoptive parents for all purposes.
After adoption, most legal rights and duties between the adopted person and his biological parents and blood relatives terminate (unless step-parent adoption). adopted child can still inherit from natural parents and relatives.
45
Adult Adoption
Spouse or Surviving Spouse or Parent - no judicial authorization is necessary and the parent and person to be adopted can consent in an authentic act of adoption.
Non-Stepparent Adoptions - adoptive parent and person to be adopted must file a joint petition and the court can authorize the adoption if it is in the best interest of both parties.
In any adult adoption the consent of the spouse of the adoptive parent and the person to be adopted must be obtained in an authentic act of adoption.
A person cannot adopt his spouse in an effort to permit the spouse to participate in his parents’ succession.
46
Reciprocal Rights - Children and Parents
Barbri P&D outline p. 49-54
47
Tutorship
Whenever a child is not under parental authority (e.g. both parents deceased, divorce), he must be under tutorship.
A tutor has rights and obligations over the person of the minor and over the minor’s property.
Venue is appropriate in the parish where the child resides, where the surviving parent is domiciled or where the person awarded custody is domiciled.
Tutorship may be divided into tutorship over the person and tutorship of property.
For Tutorship by nature, the tutor need only qualify for the office, for every other type they must be confirmed or appointed by the court and qualify.
To qualify, a tutor must be 18 or older, not interdicted or incopetent, not a felon, not indebted to minor not an adverse party to a lawsuit in which the minor is a party, not infirm, not of bad moral character.
Most non-natural tutors must take an oath prior to taking office and must furnish security (bond, special mortgage, personal surety) in an amount equaling at least the total value of the minor’s moveable property.
In every tutorship there shall be an undertutor (same qualification/acceptance requirements as tutor) who performs any acts that eh tutor fails to perform but does not step in and assume the tutor’s duties if tutor dies/resigns.
Tutorship expires on majority or emancipation of the tutee, unless mentally incapacitated in which the parent of a person who has less than ⅔ mental ability of a normal person can petition court for continuing tutorship after majority which will continue until the contrary order of the court (essentially makes them a permanent minor, anyone may contest the decree).
48
Duties of Tutor
Under Louisiana law the tutor shall have custody of and shall care for the person of the minor, shall see that the minor is properly reared and educated in accordance with his station in life and has the obligation to administer the minor’s estate.
This is a fiduciary duty on behalf of the tutor for the benefit of the tutee and involves the right to bring suit on behalf or defend a suit against, buy or sell property in their name, accept donations on their behalf.
The tutor is required to file an annual accounting of all property of the minor.
Tutee’s action against tutor prescribes four years after tutee’s majority.
49
Tutorship by Nauture
Parents are the natural tutors of their legitimate children an cannot be excused from the obligation of tutorship, upon the death of one parent, the other parent automatically becomes the child’s tutor.
Upon divorce the tutor is the parent with custody, joint custody makes both parents co-tutors.
Mother is the tutrix of right if the father didn’t acknowledge the child or if she didn’t concur in his acknowledgment. If such mother dies then the court gives first consideration to mother’s parents or her siblings and secondly to the father, taking into account best interests of the child.
If both parents have acknowledge, court appoints taking into account child’s best interests.
50
Tutorship by Will
The right of appointing a tutor belongs exclusively to the spouse dying last unless one spouse is an interdict and the other spouse/curator dies first. Can be testamentary or through authentic act.
Named tutor need not accept, but if they refuse they lose other legacies which testator made believing he would accept tutorship.
Each parent may separately appoint a tutor of the property of the children and if several tutors are named then the first is the tutor and the others will only be called upon refusal, death, absence, or incapacitation of the previous tutor.
51
Tutorship by Effect of Law
When a tutor has not been appointed by the parent dying last, or otherwise necessary, the court selects a tutor from the child’s qualified direct ascendants, the child’s qualified collaterals by blood within the 3rd degree, and the child’s stepparent, while considering the best interests of the child.
52
Tutorship by Appointment (Dative Tutorship)
If a suitable tutorship by effect of law is not available, the court shall appoint a tutor. Court may also appoint a provisional tutor pending the appointment of a particular tutor.
53
Emancipation
Judicial Emancipation - court can order for “good cause” (protect parents from liability for the acts of minor; minor needs capacity to enter juridical acts; parents treat minor poorly), the full or limited emancipation of a minor over age 16 effective when the judgment is signed and can be modified/terminated for good cause but is only effective against 3p if filed where relevant property is located or where minor is domiciled (if moveable), petition for such may be filed by minor, parent, or jointly.
Emancipation by Marriage - A minor is fully emancipated when married and termination of the marriage does not affect emancipation.
Limited Emancipation by Authentic Act - Minor and parents or tutor of the minor can execute an authentic act of limited emancipation if the minor is over 16 effective when act is executed and can be modified for good cause but is only effective against 3p if filed where the property is located or where minor is domiciled (if moveable), does not relieve the parents of liability for the acts of the minor child
54
Interdiction
A court may order the full interdiction of an adult or emancipated minor who is unable to consistently make reasoned decision regarding the care of his person or manage his estate or is unable to effectively communicate those decisions and whose interests cannot be protected by less restrictive means.
Court may order a temporary interdiction when a petition for interdiction is pending if there is a substantial likelihood that grounds for interdiction exist and substantial harm to pending interdict is imminent.
The court shall appoint a curator and undercurator to represent the interdict who must exercise reasonable care, diligence, and prudence and act in the best interest in the interdict in caring for the person or affairs of the interdict.
A full interdict lacks the capacity to make any juridical act (partial interdict only wrt property/aspects of personal care that the judgment stipulated) all such acts post-petition are relatively null from the date of the filing for the petition for interdiction if it is granted.
55
Liability of Curators/Undercurators
Barbri P&D outline p. 60
56
Modification/Termination of Interdiction
A court may modify or terminate a judgment of interdiction for good cause if in the best interest of the interdict and will consider the following factors: whether curator has/will misapply, embezzle or remove the interdict’s property, has failed to render any account required by law, has failed to obey an order of the court, has comitted gross miscounduct or mismanagement of duties, is incapacitated (e.g. incompetence/incarceration), has abused, failed to educate interdict, or has failed to provide the interdict with as much independence as the means of the interdict and the conditions of his estate permit. Such a modification is effective on the date it is signed by the court.
A spouse, relative or interested person can petition for removal of the curator or undercurator upon a clear showing that either/both is not adequately performing their duties.
57
Preliminary/Temporary Interdiction and Wrongful Filing for Petition of Interdiction
Barbri P&D outline p. 62
58
Absent Persons
An absentee is a person who has no representative in the state and cannot be located with diligent effort.
If the absentee owns property in Louisiana the court may appoint a curator to manage or dispose of the property upon the petition of any interested party and a showing of necessity.
Curator must account for his management and restore the property when curatorship terminates and must file notice of termination in the curatorship proceeding and has the duty to initiate proceeding for a declaration of death in the case that absent person is presumed dead without known heirs. Curatorship terminates when absentee appears or when a judgement of declaration of death is rendered.
If absentee is absent for five years, he is presumed dead, interested persons may petition the court for declaration/determination of death (two years if related to Katrina/Rita and btw 8/26 and 9/30 2005)
59
Recovery of Property and Inheritance if Absentee Reappears
Barbri P&D outline p. 65
60
Legal Regine of Community of Acquets and Gains.
Married couples who are both domiciled in Louisiana are governed by Louisiana’s community property regime of acquets and gains from the time they both become Louisiana domiciliaries unless the have modified or terminated such through the establishment of a matrimonial agreement between both parties and regardless of their domicile at the time of marriage or the location of the ceremony.
While under the legal regime, each spouse owns a present undivided one-half interest in the community property and cannot alienate, encumber, or lease to a 3p their undivided interested in the community or in particular things of the community. Any such attempted disposition by intervivos act to a 3p is an absolute nullity (note: they can sell things in the community, just not their undivided interest).
61
Classification of Assets Under the Legal Regime
Things in the possession of a spouse during the existence of the legal regime are presumed to be community but either spouse may rebut this presumption by proof by a preponderance of the evidence that the property is separate.
Community Property - property acquired during the existence of the legal regime through effort, skill or industry of either spouse, acquired with some/all community things, property donated to spouses jointly, the natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community and all other property not classified as separate.
Separate Property - property acquired by spouse prior to the establishment of a community property regime, acquired by spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison to the value of separate things used (jurisprudence has held that inconsequential means less than 20%), inherited/donated to spouse individually (donative intent is dispositive), damages for mismanagement of community property by other spouse, damages arising from separate property.
Generally classification of property as community or separate is an all-or-nothing proposition (entirely community or entirely separate) unless subsequent acquisition of community interest in thing that spouse already has separate interest in or vice versa.
61
Legal Regine of Community of Acquets and Gains.
Married couples who are both domiciled in Louisiana are governed by Louisiana’s community property regime of acquets and gains from the time they both become Louisiana domiciliaries unless the have modified or terminated such through the establishment of a matrimonial agreement between both parties and regardless of their domicile at the time of marriage or the location of the ceremony.
While under the legal regime, each spouse owns a present undivided one-half interest in the community property and cannot alienate, encumber, or lease to a 3p their undivided interested in the community or in particular things of the community. Any such attempted disposition by intervivos act to a 3p is an absolute nullity (note: they can sell things in the community, just not their undivided interest).
62
Credit Sales and Bond For Deed Contracts
Classification of an asset under a legal regime is fixed at the moment of acquisition regardless of subsequent payments but may give rise to reimbursement rights for repayment of loans and the like.
Under louisiana sales law, title passes upon agreement on the thing and the price thus pre-marital property bought through a credit sale is separate property (e.g. bought car right before marriage but paid loan in community assets).
On the other hand, a bond for deed contract (installment sale) pases title after payment of the final installment and is community property if the contribution of community property to the total cost is not inconsequential.
62
Classification of Assets Under the Legal Regime
Things in the possession of a spouse during the existence of the legal regime are presumed to be community but either spouse may rebut this presumption by proof by a preponderance of the evidence that the property is separate.
Community Property - property acquired during the existence of the legal regime through effort, skill or industry of either spouse, acquired with some/all community things, property donated to spouses jointly, the natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community and all other property not classified as separate.
Separate Property - property acquired by spouse prior to the establishment of a community property regime, acquired by spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison to the value of separate things used (jurisprudence has held that inconsequential means less than 20%), inherited/donated to spouse individually (donative intent is dispositive), damages for mismanagement of community property by other spouse, damages arising from separate property.
Generally classification of property as community or separate is an all-or-nothing proposition (entirely community or entirely separate) unless subsequent acquisition of community interest in thing that spouse already has separate interest in or vice versa.
63
Credit Sales and Bond For Deed Contracts
Classification of an asset under a legal regime is fixed at the moment of acquisition regardless of subsequent payments but may give rise to reimbursement rights for repayment of loans and the like.
Under louisiana sales law, title passes upon agreement on the thing and the price thus pre-marital property bought through a credit sale is separate property (e.g. bought car right before marriage but paid loan in community assets).
On the other hand, a bond for deed contract (installment sale) pases title after payment of the final installment and is community property if the contribution of community property to the total cost is not inconsequential.
64
Real Subrogation
The principle of real subrogation is applicable to both separate and community property when a separate/community thing is converted into another thing (selling real estate and using the proceeds to buy stock).
64
Real Subrogation
The principle of real subrogation is applicable to both separate and community property when a separate/community thing is converted into another thing (selling real estate and using the proceeds to buy stock).
65
Estoppel by Deed
A declaration in an act of acquisition that things are acquired with separate funds are separate property may be controverted other spouse unless they concurred in the act and may be controverted by forced heirs and creditors regardless of whether spouse concurred in the act. Some courts have liberally interpreted this principle to apply to separate acts declaring previously acquired property as separate.
66
Matrimonial Agreements
Spouses may enter into a matrimonial agreement as to all matters that are not prohibited by public policy
okay - respective contributions to the expenses of the marriage, apportionment of community property, reservation of fruits of separate property as separate property, future property, waiver of final support.
not okay - renouncing/altering marital portion, renounce/alter order of succession, limitation on the right one spouse has to obligate, alienate, encumber or lease (not enforceable against 3p but enforceable between spouses), waiver of interim support.
A matrimonial agreement shall be made by authentic act or an act under private signature duly acknowledged by the spouses in the presence of a notary and two witnesses, this is only available to minors if both parents or tutor consents.
Spouses may freely enter into a matrimonial agreement before marriage, if executed/dualy acknowledged after marriage they must petition for/obtain court approval unless within first year of married couple acquiring domicile in this state.
Spouses may subject themselves to the legal regime at any time without court approval.
66
Estoppel by Deed
A declaration in an act of acquisition that things are acquired with separate funds are separate property may be controverted other spouse unless they concurred in the act and may be controverted by forced heirs and creditors regardless of whether spouse concurred in the act. Some courts have liberally interpreted this principle to apply to separate acts declaring previously acquired property as separate.
67
Matrimonial Agreements
Spouses may enter into a matrimonial agreement as to all matters that are not prohibited by public policy
okay - respective contributions to the expenses of the marriage, apportionment of community property, reservation of fruits of separate property as separate property, future property, waiver of final support.
not okay - renouncing/altering marital portion, renounce/alter order of succession, limitation on the right one spouse has to obligate, alienate, encumber or lease (not enforceable against 3p but enforceable between spouses), waiver of interim support.
A matrimonial agreement shall be made by authentic act or an act under private signature duly acknowledged by the spouses in the presence of a notary and two witnesses, this is only available to minors if both parents or tutor consents.
Spouses may freely enter into a matrimonial agreement before marriage, if executed/dualy acknowledged after marriage they must petition for/obtain court approval unless within first year of married couple acquiring domicile in this state.
Spouses may subject themselves to the legal regime at any time without court approval.
68
Nature of Legal Regime
Barbri CP outline p. 4-5
68
Nature of Legal Regime
Barbri CP outline p. 4-5
69
Community Property > Separate Property
The donation by a spouse to the other spouse of his undivided interest in an item of community property transforms that item into the donee spouse's separate property. There is no special form requirement for donation of community property from one spouse to another, just has to be a valid donation (physical transfer of movable/donative intent).
70
Separate Property > Community Property
The transfer by a spouse to the other spouse of an item of separate property, with the stipulation that it shall be part of the community, transforms that item into community property. The Donor spouse must stipulate that the item “shall be part of the community property” and the transfer must be in writing for onerous transfers and by authentic act for gratuitous transfers. Failure to adhere to the special form requirements for donation of separate property turns the donated property into the separate property of the donee spouse.
70
Community Property > Separate Property
The donation by a spouse to the other spouse of his undivided interest in an item of community property transforms that item into the donee spouse's separate property. There is no special form requirement for donation of community property from one spouse to another, just has to be a valid donation (physical transfer of movable/donative intent).
71
Separate Property > Community Property
The transfer by a spouse to the other spouse of an item of separate property, with the stipulation that it shall be part of the community, transforms that item into community property. The Donor spouse must stipulate that the item “shall be part of the community property” and the transfer must be in writing for onerous transfers and by authentic act for gratuitous transfers. Failure to adhere to the special form requirements for donation of separate property turns the donated property into the separate property of the donee spouse.
72
Comingling
Simply mixing community and separate funds/assets together does not vitiate their community/separate identity, however because assets held during the regime are presumed to be community a spouse claiming separate portion of an account balance must prove that the funds were deposited into the account and not withdrawn.
72
Comingling
Simply mixing community and separate funds/assets together does not vitiate their community/separate identity, however because assets held during the regime are presumed to be community a spouse claiming separate portion of an account balance must prove that the funds were deposited into the account and not withdrawn.
73
Earnings Under a Community Property Regime
Property acquired through the effort, skill or industry of either spouse is community property if the effort was expended during the existence of the legal regime (skill based sweepstakes=community, contingency fee=pro rata separation of fee btw separate and community based on % effort expended during legal regime).
Courts will classify funds as earnings and thus not subject to a declaration of paraphernality, to the extent the spouse expended effort in generating the funds (e.g. wife’s cash dividend from sole-owned corp is fruits if no services, earning if equal in value to uncompensated services, and part earnings part fruit if worth more than uncompensated services).
74
Fruits and Revenues of Separate Property Under a Community Property Regime
The natural/civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties , and shut-in payments arising from mineral leases are community property.
A spouse may unilaterally reserve such fruits and revenues as his separate property through a declaration of paraphernality a copy of which shall be provided to the other spouse, effective from the date the copy is provided and the declaration is filed for registry in the parish in which the immovable property is located or, for moveables, where the declarant is domiciled (might be okay to provide copy after filing due to ambiguity in statutory language).
74
Earnings Under a Community Property Regime
Property acquired through the effort, skill or industry of either spouse is community property if the effort was expended during the existence of the legal regime (skill based sweepstakes=community, contingency fee=pro rata separation of fee btw separate and community based on % effort expended during legal regime).
Courts will classify funds as earnings and thus not subject to a declaration of paraphernality, to the extent the spouse expended effort in generating the funds (e.g. wife’s cash dividend from sole-owned corp is fruits if no services, earning if equal in value to uncompensated services, and part earnings part fruit if worth more than uncompensated services).
75
Fruits and Revenues of Separate Property Under a Community Property Regime
The natural/civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties , and shut-in payments arising from mineral leases are community property.
A spouse may unilaterally reserve such fruits and revenues as his separate property through a declaration of paraphernality a copy of which shall be provided to the other spouse, effective from the date the copy is provided and the declaration is filed for registry in the parish in which the immovable property is located or, for moveables, where the declarant is domiciled (might be okay to provide copy after filing due to ambiguity in statutory language).
76
Pensions Under a Community Property Regime
Pensions are an exception to Louisiana’s all-or-nothing classification scheme and are classified on a pro rata basis and are community property to the extent attributable to effort expended by the spouse during the existence of the community.
For defined contribution pension plans he portion of the total pension attributable to the contributions made by the employee spouse during the legal regime determines the community share of the ultimate payments.
For defined benefit plans ultimate payments are typically determined using the fixed percentage approach (Sim’s Formula) which divides the portion of the pension attributable to employment during the existence of the legal regime and divides it by the total length of employment, which contributed to that pension or using the present value method of apportionment, with the (Hare) exception for extraordinary achievements by the employee after termination of the legal regime, although few reported decisions have found such efforts to be significant enough (e.g. next natural step in promotion not sufficient).
The court may also determine ultimate payments of a defined benefit plan by the present value method of apportionment which values the employee spouse's interest in the plan and allocated to them and the nonemployee spouse is allocated community assets of an equal value, this involves greater speculation since the ultimate value of the pension is not known at the time of partition.
Social Security benefits are separate property of the beneficiary spouse through preemption of federal law but may entitle the non-beneficiary spouse to offsetting award of community assets of equal value.
The right to seek partition of pensions is imprescribable.
76
Pensions Under a Community Property Regime
Pensions are an exception to Louisiana’s all-or-nothing classification scheme and are classified on a pro rata basis and are community property to the extent attributable to effort expended by the spouse during the existence of the community.
For defined contribution pension plans he portion of the total pension attributable to the contributions made by the employee spouse during the legal regime determines the community share of the ultimate payments.
For defined benefit plans ultimate payments are typically determined using the fixed percentage approach (Sim’s Formula) which divides the portion of the pension attributable to employment during the existence of the legal regime and divides it by the total length of employment, which contributed to that pension or using the present value method of apportionment, with the (Hare) exception for extraordinary achievements by the employee after termination of the legal regime, although few reported decisions have found such efforts to be significant enough (e.g. next natural step in promotion not sufficient).
The court may also determine ultimate payments of a defined benefit plan by the present value method of apportionment which values the employee spouse's interest in the plan and allocated to them and the nonemployee spouse is allocated community assets of an equal value, this involves greater speculation since the ultimate value of the pension is not known at the time of partition.
Social Security benefits are separate property of the beneficiary spouse through preemption of federal law but may entitle the non-beneficiary spouse to offsetting award of community assets of equal value.
The right to seek partition of pensions is imprescribable.
77
Pensions and Federal Preemption
Barbri CP outline p. 17
78
Personal Injury Damages Under a Community Property Regime
Damages due to personal injuries sustained during the existence of the legal regime are separate property exception the portions attributable to community expenses or lost wages during the existence of the legal regime (pro rata).
78
Pensions and Federal Preemption
Barbri CP outline p. 17
79
Personal Injury Damages Under a Community Property Regime
Damages due to personal injuries sustained during the existence of the legal regime are separate property exception the portions attributable to community expenses or lost wages during the existence of the legal regime (pro rata).
80
Life Insurance Under a Community Property Regime
Proceeds of a policy payable upon death (term-life) are the separate property of the named beneficiary, whole-life insurance policies acquired during marriage are community property so long as the community contribution is not inconsequential and are valued at its cash surrender value at the time of partition.
80
Life Insurance Under a Community Property Regime
Proceeds of a policy payable upon death (term-life) are the separate property of the named beneficiary, whole-life insurance policies acquired during marriage are community property so long as the community contribution is not inconsequential and are valued at its cash surrender value at the time of partition.
81
Disability Payments
For disability payments the nature of the benefits and not source of the payments is determinative lost income is community but deferred compensation is separate.
82
Intellectual Property Under a Community Property Regime
Intellectual property works are classified on a pro rata basis according to the portion of the revenue ultimately generated by the work attributable to work performed during the existence of the community.
This is preempted for copyrighted works where the fructus remains community while the usus and abusus remains separate.
82
Disability Payments
For disability payments the nature of the benefits and not source of the payments is determinative lost income is community but deferred compensation is separate.
83
Intellectual Property Under a Community Property Regime
Intellectual property works are classified on a pro rata basis according to the portion of the revenue ultimately generated by the work attributable to work performed during the existence of the community.
This is preempted for copyrighted works where the fructus remains community while the usus and abusus remains separate.
84
Goodwill of Business Under a Community Property Regime
Goodwill of a community owned corporate, commercial or professional business is community except to the extent it is attributable to any personal quality of the spouse (e.g. personal skill in designing a wedding dress).
84
Goodwill of Business Under a Community Property Regime
Goodwill of a community owned corporate, commercial or professional business is community except to the extent it is attributable to any personal quality of the spouse (e.g. personal skill in designing a wedding dress).
85
Insurance Policy Renewal Commissions
Barbri CP outline p. 13
86
Management of Community Property
The concurrence of both spouses is required for the donation, alienation, encumberance, or lease of community immovables, standing, cut, or fallen timber (or the harvest thereof), furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise and movables issued or registered in the names of the spouses jointly.
Concurrence is not required for the donation of a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.
A spouse can ratify the alienation encombrance or lease of a community immovable.
A spouse may petition the court for authority to act without the concurrence of the other spouse if the other spouse arbitrarily refuses to concur or cannot concur due to incapacity/absence and it is in the best interest of the family, can also do so for property that the absent spouse has the exclusive right manage.
A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name and/or their partnership or LLC interests.
Other sole manager spouse must obtain their consent to alienate/encumber registered moveables.
86
Insurance Policy Renewal Commissions
Barbri CP outline p. 13
87
Management of Community Property
The concurrence of both spouses is required for the donation, alienation, encumberance, or lease of community immovables, standing, cut, or fallen timber (or the harvest thereof), furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise and movables issued or registered in the names of the spouses jointly.
Concurrence is not required for the donation of a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.
A spouse can ratify the alienation encombrance or lease of a community immovable.
A spouse may petition the court for authority to act without the concurrence of the other spouse if the other spouse arbitrarily refuses to concur or cannot concur due to incapacity/absence and it is in the best interest of the family, can also do so for property that the absent spouse has the exclusive right manage.
A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name and/or their partnership or LLC interests.
Other sole manager spouse must obtain their consent to alienate/encumber registered moveables.
88
Renunciation of Spousal Right to Concur in the Management of Community Assets
A spouse may expressly renounce the right to concur in the alienation/donation of all/specific community property. Renunciations may only be irrevocable for up to 3 years and removes the revoking spouse from satisfaction of related obligations from their separate assets.
88
Renunciation of Spousal Right to Concur in the Management of Community Assets
A spouse may expressly renounce the right to concur in the alienation/donation of all/specific community property. Renunciations may only be irrevocable for up to 3 years and removes the revoking spouse from satisfaction of related obligations from their separate assets.
89
Mismanagement of Community Assets
The alienation/encumbrance/lease of relevant community property without concurrence is relatively null and gives rise to an action to annul the sale.
A spouse is liable for any loss or damage (sold at under value) caused by fraud or bad faith (sold to girlfriend) in the management of community property.
90
Termination of Legal Regime
Death, nullity, divorce, matrimonial agreement, judgment decreeing separation of property.
90
Mismanagement of Community Assets
The alienation/encumbrance/lease of relevant community property without concurrence is relatively null and gives rise to an action to annul the sale.
A spouse is liable for any loss or damage (sold at under value) caused by fraud or bad faith (sold to girlfriend) in the management of community property.
91
Termination of Legal Regime
Death, nullity, divorce, matrimonial agreement, judgment decreeing separation of property.
92
Management of Former Community Property
A spouse must preserve and manage former community property under his control in a manner consistent with the use of the property prior to termination.
A spouse may not alienate community property (other than moveables registered in his name) without concurrence but can seek judicial authorization to do so if he can show that that action is necessary, in the best interest of the petitioning spouse and not detrimental to the non-concurring spouse and the other spouse is absent, incapacitated, imprisoned incompetent or is acting arbitrarily.
A spouse is not liable to the other spouse for rental for the use and occupancy of the former community home unless previously agreed to or prospectively ordered by the court.
A spouse has the right to demand judicial partition of former community property at any time (contrary agreements are absolutely null).
92
Management of Former Community Property
A spouse must preserve and manage former community property under his control in a manner consistent with the use of the property prior to termination.
A spouse may not alienate community property (other than moveables registered in his name) without concurrence but can seek judicial authorization to do so if he can show that that action is necessary, in the best interest of the petitioning spouse and not detrimental to the non-concurring spouse and the other spouse is absent, incapacitated, imprisoned incompetent or is acting arbitrarily.
A spouse is not liable to the other spouse for rental for the use and occupancy of the former community home unless previously agreed to or prospectively ordered by the court.
A spouse has the right to demand judicial partition of former community property at any time (contrary agreements are absolutely null).
93
Community Obligations
An obligation incurred by a spouse during the existence of the legal regime for the common interest of the spouses or for the benefit of the other spouse is a community obligation. All obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations (this includes alimentary obligation from previous marriage and attorney fees and costs in an action for/incidental to divorce).
94
Separate Obligations
Obligations incurred prior to the establishment of the legal regime, incurred during the legal regime for the sole interest of the spouse incurring the obligation, and obligations for intentional torts not perpetrated for the benefit of the community are separate.
94
Community Obligations
An obligation incurred by a spouse during the existence of the legal regime for the common interest of the spouses or for the benefit of the other spouse is a community obligation. All obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations (this includes alimentary obligation from previous marriage and attorney fees and costs in an action for/incidental to divorce).
95
Separate Obligations
Obligations incurred prior to the establishment of the legal regime, incurred during the legal regime for the sole interest of the spouse incurring the obligation, and obligations for intentional torts not perpetrated for the benefit of the community are separate.
96
Reimbursement Between Spouses
A claim for reimbursement may be asserted only after the termination of the legal regime. Reimbursement shall be made from the patrimony of the spouse who owes reimbursement and is treated like an interest-free loan and is thus based upon the amount or value of the assets used at the time they were used.
As between spouses, the owner of the ground owns all the improvements placed thereon.
96
Reimbursement Between Spouses
A claim for reimbursement may be asserted only after the termination of the legal regime. Reimbursement shall be made from the patrimony of the spouse who owes reimbursement and is treated like an interest-free loan and is thus based upon the amount or value of the assets used at the time they were used.
As between spouses, the owner of the ground owns all the improvements placed thereon.
97
Reimbursement Between Spouses - Separate Used to Benefit Separate
A spouse that contributes separate property during the existence of the legal regime for the acquisition, use, improvement, or benefit of the other spouse's separate property or to discharge a separate obligation is entitled to reimbursement for their property at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses).
98
Reimbursement Between Spouses - Separate Used to Benefit Separate
A spouse that contributes separate property during the existence of the legal regime for the acquisition, use, improvement, or benefit of the other spouse's separate property or to discharge a separate obligation is entitled to reimbursement for their property at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses).
99
Reimbursement Between Spouses - Separate Used to Benefit Community
If the separate property of a spouse is used to satisfy a community obligation (either during or after the termination of the legal regime) is entitled to reimbursement for one-half the value that the property had at the time it was used (reduced by the value of the claimant’s use, if a corporeal moveable, the value of that use and the amount of the claim for reimbursement accrued during that use are presumed to be equal unless proven otherwise).
The liability of a spouse who owes reimbursement in this way is limited to the value of his share of all community property after deduction of all community obligations, except for and customary expenses of the marriage or expenses for the support, maintenance, or education of children of either spouse in keeping with the economic condition of the spouses.
For community property, same rules as separate for separate only they get ½ instead of full compensation.
101
Reimbursement Between Spouses - Separate Used to Benefit Community
If the separate property of a spouse is used to satisfy a community obligation (either during or after the termination of the legal regime) is entitled to reimbursement for one-half the value that the property had at the time it was used (reduced by the value of the claimant’s use, if a corporeal moveable, the value of that use and the amount of the claim for reimbursement accrued during that use are presumed to be equal unless proven otherwise).
The liability of a spouse who owes reimbursement in this way is limited to the value of his share of all community property after deduction of all community obligations, except for and customary expenses of the marriage or expenses for the support, maintenance, or education of children of either spouse in keeping with the economic condition of the spouses.
For community property, same rules as separate for separate only they get ½ instead of full compensation.
103
Reimbursement Between Spouses - Community Used to Benefit Separate
If community property has been used during the existence of the legal regime or former community property has been used to satisfy the separate obligation of a spouse, the other spouse is entitled to reimbursement of ½ of the value that the community property had at the time it was used.
There is no limit on the amount of reimbursement when (former) community property is used to satisfy a separate obligation.
If (former) community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse the other spouse is entitled to reimbursement for ½ the value of the community property had at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses)
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of either/both spouse(s), the other spouse is entitled to be reimbursed ½ the increase in value of that separate property attributable to the common labor.
Special Case for Family Home - If non-owning spouse lives in home their reimbursement claim is limited to the reduction in principal.
105
Reimbursement Between Spouses - Community Used to Benefit Separate
If community property has been used during the existence of the legal regime or former community property has been used to satisfy the separate obligation of a spouse, the other spouse is entitled to reimbursement of ½ of the value that the community property had at the time it was used.
There is no limit on the amount of reimbursement when (former) community property is used to satisfy a separate obligation.
If (former) community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse the other spouse is entitled to reimbursement for ½ the value of the community property had at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses)
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of either/both spouse(s), the other spouse is entitled to be reimbursed ½ the increase in value of that separate property attributable to the common labor.
Special Case for Family Home - If non-owning spouse lives in home their reimbursement claim is limited to the reduction in principal.
107
Partition of Community Assets and Obligations
Spouses cannot be forced to judicially partition community property before termination of the regime but can voluntarily partition before termination without court approval which is effective against 3ps when registered in the proper venue.
Partition can be attacked on all grounds for which any other contract may be assailed (lesion, vice of consent). Liberative prescription for an action attacking partition of community property is five years from the date of the partition or five years from the date the truth was discovered in the case of error or fraud.
109
Partition of Community Assets and Obligations
Spouses cannot be forced to judicially partition community property before termination of the regime but can voluntarily partition before termination without court approval which is effective against 3ps when registered in the proper venue.
Partition can be attacked on all grounds for which any other contract may be assailed (lesion, vice of consent). Liberative prescription for an action attacking partition of community property is five years from the date of the partition or five years from the date the truth was discovered in the case of error or fraud.
111
Procedure for Judicial Partition of Community Assets and Obligations
Barbri CP outline p. 33-34
113
Procedure for Judicial Partition of Community Assets and Obligations
Barbri CP outline p. 33-34
115
Creditor’s Rights
During the legal regime, a separate or community obligation may be satisfied from community property or from the separate property of the spouse who incurred the obligation. This may give rise to a claim for reimbursement on behalf of the other spouse in accordance with the rules for reimbursement under a legal regime.
After termination of the legal regime, obligations incurred before or during the legal regime may be satisfied from the obligee’s separate property or from the former community property. If a spouse disposes of former community property for any purpose other than satisfying community obligations, they are liable to all creditors that had a right to satisfy their obligation with said former community property up to the value of the disposed property, unless they assume responsibility for one-half of each community obligation incurred by the other spouse by written act.
117
Creditor’s Rights
During the legal regime, a separate or community obligation may be satisfied from community property or from the separate property of the spouse who incurred the obligation. This may give rise to a claim for reimbursement on behalf of the other spouse in accordance with the rules for reimbursement under a legal regime.
After termination of the legal regime, obligations incurred before or during the legal regime may be satisfied from the obligee’s separate property or from the former community property. If a spouse disposes of former community property for any purpose other than satisfying community obligations, they are liable to all creditors that had a right to satisfy their obligation with said former community property up to the value of the disposed property, unless they assume responsibility for one-half of each community obligation incurred by the other spouse by written act.
119
Creditors Rights Following Voluntary Partition Without Termination of the Legal Regime
Barbri CP outline p. 35
121
Creditors Rights Following Voluntary Partition Without Termination of the Legal Regime
Barbri CP outline p. 35
123
Separation of Property Regime
A regime of separation of property may be established by agreement an excludes the legal regime by a judgment of separation of property.
A spouse may obtain a judgment decreeing separation of property where that spouse's interest in community property is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse; when a spouse is an absent person; when a petition for divorce has been filed; or when the spouses have lived separate and apart continuously for a period of six months.
A judgment decreeing separation of property terminates the legal regime retroactively to the date the petition for separation was filed or in the case of a pending previously filed petition for divorce, to the date of the filing for that petition for divorce, without prejudice to the rights validly acquired in the interim between the filing of the petition or motion and rendition of judgment.
Reconciliation reestablishes the legal regime retroactively to the day of filing the petition for separation unless spouses execute a matrimonial agreement prior to reconciliation.
Under a separation of property regime, spouses remain solidarily liable for obligations incurred by either spouse for necessaries obtained for family members (e.g. obligations arising from other spouse being in car accident and goes to emergency room), and spouses are obliged to contributes tot he expenses of the marriage according to their matrimonial agreement, or in the absence of such agreement in proportion to their means.
125
Separation of Property Regime
A regime of separation of property may be established by agreement an excludes the legal regime by a judgment of separation of property.
A spouse may obtain a judgment decreeing separation of property where that spouse's interest in community property is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse; when a spouse is an absent person; when a petition for divorce has been filed; or when the spouses have lived separate and apart continuously for a period of six months.
A judgment decreeing separation of property terminates the legal regime retroactively to the date the petition for separation was filed or in the case of a pending previously filed petition for divorce, to the date of the filing for that petition for divorce, without prejudice to the rights validly acquired in the interim between the filing of the petition or motion and rendition of judgment.
Reconciliation reestablishes the legal regime retroactively to the day of filing the petition for separation unless spouses execute a matrimonial agreement prior to reconciliation.
Under a separation of property regime, spouses remain solidarily liable for obligations incurred by either spouse for necessaries obtained for family members (e.g. obligations arising from other spouse being in car accident and goes to emergency room), and spouses are obliged to contributes tot he expenses of the marriage according to their matrimonial agreement, or in the absence of such agreement in proportion to their means.
127
Creditor’s Rights Pending a Judgment for Separation of Property
Creditors may intervene in a proceeding to establish a separation of property if it is a fraud on their rights and may sue to annul a judgment of separation of property within one year from the date that the final judgment is rendered but may only assert nullity to the extent that they have been prejudiced.
129
Creditor’s Rights Pending a Judgment for Separation of Property
Creditors may intervene in a proceeding to establish a separation of property if it is a fraud on their rights and may sue to annul a judgment of separation of property within one year from the date that the final judgment is rendered but may only assert nullity to the extent that they have been prejudiced.
131
Marital Portion
When a spouse dies rich in comparison with a surviving spouse (no concrete test but ordinarily awarded when asset comparison shows a ratio of at least 5 to 1; earning capacity of surviving spouse is irrelevant) they are entitle to claim the marital portion from the succession of the deceased spouse.
The marital portion consists of ¼ ownership of the succession (no children), ¼ usufruct of the succession for life (3 or less children), or usufruct over the child’s share of the succession for life (4 or more children) reduced by any legacy left to the surviving spouse by decedent or any amounts owed by surviving spouse to the decedent as a result of their death. A spouse that will be entitled to a marital portion during the administration of the succession has the right to demand and receive a periodic allowance from the succession representative (fixed by the court) and is charged with deficiency for any amounts received in excess of the marital portion they are entitled to.
The marital portion is a charge on the succession of the deceased spouse under any matrimonial regime and may be claimed by any surviving spouse even if separated upon proof that the separation occurred without the fault of the surviving spouse. The marital portion cannot be renounced or altered, is nonheritable (but the already submitted claim is), and prescribes three years from the date of death.
133
Marital Portion
When a spouse dies rich in comparison with a surviving spouse (no concrete test but ordinarily awarded when asset comparison shows a ratio of at least 5 to 1; earning capacity of surviving spouse is irrelevant) they are entitle to claim the marital portion from the succession of the deceased spouse.
The marital portion consists of ¼ ownership of the succession (no children), ¼ usufruct of the succession for life (3 or less children), or usufruct over the child’s share of the succession for life (4 or more children) reduced by any legacy left to the surviving spouse by decedent or any amounts owed by surviving spouse to the decedent as a result of their death. A spouse that will be entitled to a marital portion during the administration of the succession has the right to demand and receive a periodic allowance from the succession representative (fixed by the court) and is charged with deficiency for any amounts received in excess of the marital portion they are entitled to.
The marital portion is a charge on the succession of the deceased spouse under any matrimonial regime and may be claimed by any surviving spouse even if separated upon proof that the separation occurred without the fault of the surviving spouse. The marital portion cannot be renounced or altered, is nonheritable (but the already submitted claim is), and prescribes three years from the date of death.
135
Legal Regine of Community of Acquets and Gains.
Married couples who are both domiciled in Louisiana are governed by Louisiana’s community property regime of acquets and gains from the time they both become Louisiana domiciliaries unless the have modified or terminated such through the establishment of a matrimonial agreement between both parties and regardless of their domicile at the time of marriage or the location of the ceremony.
While under the legal regime, each spouse owns a present undivided one-half interest in the community property and cannot alienate, encumber, or lease to a 3p their undivided interested in the community or in particular things of the community. Any such attempted disposition by intervivos act to a 3p is an absolute nullity (note: they can sell things in the community, just not their undivided interest).
136
Classification of Assets Under the Legal Regime
Things in the possession of a spouse during the existence of the legal regime are presumed to be community but either spouse may rebut this presumption by proof by a preponderance of the evidence that the property is separate.
Community Property - property acquired during the existence of the legal regime through effort, skill or industry of either spouse, acquired with some/all community things, property donated to spouses jointly, the natural and civil fruits of community property, damages awarded for loss or injury to a thing belonging to the community and all other property not classified as separate.
Separate Property - property acquired by spouse prior to the establishment of a community property regime, acquired by spouse with separate things or with separate and community things when the value of the community things is inconsequential in comparison to the value of separate things used (jurisprudence has held that inconsequential means less than 20%), inherited/donated to spouse individually (donative intent is dispositive), damages for mismanagement of community property by other spouse, damages arising from separate property.
Generally classification of property as community or separate is an all-or-nothing proposition (entirely community or entirely separate) unless subsequent acquisition of community interest in thing that spouse already has separate interest in or vice versa.
137
Credit Sales and Bond For Deed Contracts
Classification of an asset under a legal regime is fixed at the moment of acquisition regardless of subsequent payments but may give rise to reimbursement rights for repayment of loans and the like.
Under louisiana sales law, title passes upon agreement on the thing and the price thus pre-marital property bought through a credit sale is separate property (e.g. bought car right before marriage but paid loan in community assets).
On the other hand, a bond for deed contract (installment sale) pases title after payment of the final installment and is community property if the contribution of community property to the total cost is not inconsequential.
138
Real Subrogation
The principle of real subrogation is applicable to both separate and community property when a separate/community thing is converted into another thing (selling real estate and using the proceeds to buy stock).
139
Estoppel by Deed
A declaration in an act of acquisition that things are acquired with separate funds are separate property may be controverted other spouse unless they concurred in the act and may be controverted by forced heirs and creditors regardless of whether spouse concurred in the act. Some courts have liberally interpreted this principle to apply to separate acts declaring previously acquired property as separate.
140
Matrimonial Agreements
Spouses may enter into a matrimonial agreement as to all matters that are not prohibited by public policy
okay - respective contributions to the expenses of the marriage, apportionment of community property, reservation of fruits of separate property as separate property, future property, waiver of final support.
not okay - renouncing/altering marital portion, renounce/alter order of succession, limitation on the right one spouse has to obligate, alienate, encumber or lease (not enforceable against 3p but enforceable between spouses), waiver of interim support.
A matrimonial agreement shall be made by authentic act or an act under private signature duly acknowledged by the spouses in the presence of a notary and two witnesses, this is only available to minors if both parents or tutor consents.
Spouses may freely enter into a matrimonial agreement before marriage, if executed/dualy acknowledged after marriage they must petition for/obtain court approval unless within first year of married couple acquiring domicile in this state.
Spouses may subject themselves to the legal regime at any time without court approval.
141
Nature of Legal Regime
Barbri CP outline p. 4-5
142
Community Property > Separate Property
The donation by a spouse to the other spouse of his undivided interest in an item of community property transforms that item into the donee spouse's separate property. There is no special form requirement for donation of community property from one spouse to another, just has to be a valid donation (physical transfer of movable/donative intent).
143
Separate Property > Community Property
The transfer by a spouse to the other spouse of an item of separate property, with the stipulation that it shall be part of the community, transforms that item into community property. The Donor spouse must stipulate that the item “shall be part of the community property” and the transfer must be in writing for onerous transfers and by authentic act for gratuitous transfers. Failure to adhere to the special form requirements for donation of separate property turns the donated property into the separate property of the donee spouse.
144
Comingling
Simply mixing community and separate funds/assets together does not vitiate their community/separate identity, however because assets held during the regime are presumed to be community a spouse claiming separate portion of an account balance must prove that the funds were deposited into the account and not withdrawn.
145
Earnings Under a Community Property Regime
Property acquired through the effort, skill or industry of either spouse is community property if the effort was expended during the existence of the legal regime (skill based sweepstakes=community, contingency fee=pro rata separation of fee btw separate and community based on % effort expended during legal regime).
Courts will classify funds as earnings and thus not subject to a declaration of paraphernality, to the extent the spouse expended effort in generating the funds (e.g. wife’s cash dividend from sole-owned corp is fruits if no services, earning if equal in value to uncompensated services, and part earnings part fruit if worth more than uncompensated services).
146
Fruits and Revenues of Separate Property Under a Community Property Regime
The natural/civil fruits of the separate property of a spouse, minerals produced from or attributable to a separate asset, and bonuses, delay rentals, royalties , and shut-in payments arising from mineral leases are community property.
A spouse may unilaterally reserve such fruits and revenues as his separate property through a declaration of paraphernality a copy of which shall be provided to the other spouse, effective from the date the copy is provided and the declaration is filed for registry in the parish in which the immovable property is located or, for moveables, where the declarant is domiciled (might be okay to provide copy after filing due to ambiguity in statutory language).
147
Pensions Under a Community Property Regime
Pensions are an exception to Louisiana’s all-or-nothing classification scheme and are classified on a pro rata basis and are community property to the extent attributable to effort expended by the spouse during the existence of the community.
For defined contribution pension plans he portion of the total pension attributable to the contributions made by the employee spouse during the legal regime determines the community share of the ultimate payments.
For defined benefit plans ultimate payments are typically determined using the fixed percentage approach (Sim’s Formula) which divides the portion of the pension attributable to employment during the existence of the legal regime and divides it by the total length of employment, which contributed to that pension or using the present value method of apportionment, with the (Hare) exception for extraordinary achievements by the employee after termination of the legal regime, although few reported decisions have found such efforts to be significant enough (e.g. next natural step in promotion not sufficient).
The court may also determine ultimate payments of a defined benefit plan by the present value method of apportionment which values the employee spouse's interest in the plan and allocated to them and the nonemployee spouse is allocated community assets of an equal value, this involves greater speculation since the ultimate value of the pension is not known at the time of partition.
Social Security benefits are separate property of the beneficiary spouse through preemption of federal law but may entitle the non-beneficiary spouse to offsetting award of community assets of equal value.
The right to seek partition of pensions is imprescribable.
148
Pensions and Federal Preemption
Barbri CP outline p. 17
149
Personal Injury Damages Under a Community Property Regime
Damages due to personal injuries sustained during the existence of the legal regime are separate property exception the portions attributable to community expenses or lost wages during the existence of the legal regime (pro rata).
150
Life Insurance Under a Community Property Regime
Proceeds of a policy payable upon death (term-life) are the separate property of the named beneficiary, whole-life insurance policies acquired during marriage are community property so long as the community contribution is not inconsequential and are valued at its cash surrender value at the time of partition.
151
Disability Payments
For disability payments the nature of the benefits and not source of the payments is determinative lost income is community but deferred compensation is separate.
152
Intellectual Property Under a Community Property Regime
Intellectual property works are classified on a pro rata basis according to the portion of the revenue ultimately generated by the work attributable to work performed during the existence of the community.
This is preempted for copyrighted works where the fructus remains community while the usus and abusus remains separate.
153
Goodwill of Business Under a Community Property Regime
Goodwill of a community owned corporate, commercial or professional business is community except to the extent it is attributable to any personal quality of the spouse (e.g. personal skill in designing a wedding dress).
154
Insurance Policy Renewal Commissions
Barbri CP outline p. 13
155
Management of Community Property
The concurrence of both spouses is required for the donation, alienation, encumberance, or lease of community immovables, standing, cut, or fallen timber (or the harvest thereof), furniture or furnishings while located in the family home, all or substantially all of the assets of a community enterprise and movables issued or registered in the names of the spouses jointly.
Concurrence is not required for the donation of a usual or customary gift of value commensurate with the economic position of the spouses at the time of the donation.
A spouse can ratify the alienation encombrance or lease of a community immovable.
A spouse may petition the court for authority to act without the concurrence of the other spouse if the other spouse arbitrarily refuses to concur or cannot concur due to incapacity/absence and it is in the best interest of the family, can also do so for property that the absent spouse has the exclusive right manage.
A spouse has the exclusive right to manage, alienate, encumber, or lease movables issued or registered in his name and/or their partnership or LLC interests.
Other sole manager spouse must obtain their consent to alienate/encumber registered moveables.
156
Renunciation of Spousal Right to Concur in the Management of Community Assets
A spouse may expressly renounce the right to concur in the alienation/donation of all/specific community property. Renunciations may only be irrevocable for up to 3 years and removes the revoking spouse from satisfaction of related obligations from their separate assets.
157
Mismanagement of Community Assets
The alienation/encumbrance/lease of relevant community property without concurrence is relatively null and gives rise to an action to annul the sale.
A spouse is liable for any loss or damage (sold at under value) caused by fraud or bad faith (sold to girlfriend) in the management of community property.
158
Termination of Legal Regime
Death, nullity, divorce, matrimonial agreement, judgment decreeing separation of property.
159
Management of Former Community Property
A spouse must preserve and manage former community property under his control in a manner consistent with the use of the property prior to termination.
A spouse may not alienate community property (other than moveables registered in his name) without concurrence but can seek judicial authorization to do so if he can show that that action is necessary, in the best interest of the petitioning spouse and not detrimental to the non-concurring spouse and the other spouse is absent, incapacitated, imprisoned incompetent or is acting arbitrarily.
A spouse is not liable to the other spouse for rental for the use and occupancy of the former community home unless previously agreed to or prospectively ordered by the court.
A spouse has the right to demand judicial partition of former community property at any time (contrary agreements are absolutely null).
160
Community Obligations
An obligation incurred by a spouse during the existence of the legal regime for the common interest of the spouses or for the benefit of the other spouse is a community obligation. All obligations incurred by a spouse during the existence of a community property regime are presumed to be community obligations (this includes alimentary obligation from previous marriage and attorney fees and costs in an action for/incidental to divorce).
161
Separate Obligations
Obligations incurred prior to the establishment of the legal regime, incurred during the legal regime for the sole interest of the spouse incurring the obligation, and obligations for intentional torts not perpetrated for the benefit of the community are separate.
162
Reimbursement Between Spouses
A claim for reimbursement may be asserted only after the termination of the legal regime. Reimbursement shall be made from the patrimony of the spouse who owes reimbursement and is treated like an interest-free loan and is thus based upon the amount or value of the assets used at the time they were used.
As between spouses, the owner of the ground owns all the improvements placed thereon.
163
Reimbursement Between Spouses - Separate Used to Benefit Separate
A spouse that contributes separate property during the existence of the legal regime for the acquisition, use, improvement, or benefit of the other spouse's separate property or to discharge a separate obligation is entitled to reimbursement for their property at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses).
164
Reimbursement Between Spouses - Separate Used to Benefit Community
If the separate property of a spouse is used to satisfy a community obligation (either during or after the termination of the legal regime) is entitled to reimbursement for one-half the value that the property had at the time it was used (reduced by the value of the claimant’s use, if a corporeal moveable, the value of that use and the amount of the claim for reimbursement accrued during that use are presumed to be equal unless proven otherwise).
The liability of a spouse who owes reimbursement in this way is limited to the value of his share of all community property after deduction of all community obligations, except for and customary expenses of the marriage or expenses for the support, maintenance, or education of children of either spouse in keeping with the economic condition of the spouses.
For community property, same rules as separate for separate only they get ½ instead of full compensation.
165
Reimbursement Between Spouses - Community Used to Benefit Separate
If community property has been used during the existence of the legal regime or former community property has been used to satisfy the separate obligation of a spouse, the other spouse is entitled to reimbursement of ½ of the value that the community property had at the time it was used.
There is no limit on the amount of reimbursement when (former) community property is used to satisfy a separate obligation.
If (former) community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse the other spouse is entitled to reimbursement for ½ the value of the community property had at the time it was used unless building/permanent construction/planting/component part (then belongs to the owner of the ground in the case of spouses)
If the separate property of a spouse has increased in value as a result of the uncompensated common labor or industry of either/both spouse(s), the other spouse is entitled to be reimbursed ½ the increase in value of that separate property attributable to the common labor.
Special Case for Family Home - If non-owning spouse lives in home their reimbursement claim is limited to the reduction in principal.
166
Partition of Community Assets and Obligations
Spouses cannot be forced to judicially partition community property before termination of the regime but can voluntarily partition before termination without court approval which is effective against 3ps when registered in the proper venue.
Partition can be attacked on all grounds for which any other contract may be assailed (lesion, vice of consent). Liberative prescription for an action attacking partition of community property is five years from the date of the partition or five years from the date the truth was discovered in the case of error or fraud.
167
Procedure for Judicial Partition of Community Assets and Obligations
Barbri CP outline p. 33-34
168
Creditor’s Rights
During the legal regime, a separate or community obligation may be satisfied from community property or from the separate property of the spouse who incurred the obligation. This may give rise to a claim for reimbursement on behalf of the other spouse in accordance with the rules for reimbursement under a legal regime.
After termination of the legal regime, obligations incurred before or during the legal regime may be satisfied from the obligee’s separate property or from the former community property. If a spouse disposes of former community property for any purpose other than satisfying community obligations, they are liable to all creditors that had a right to satisfy their obligation with said former community property up to the value of the disposed property, unless they assume responsibility for one-half of each community obligation incurred by the other spouse by written act.
169
Creditors Rights Following Voluntary Partition Without Termination of the Legal Regime
Barbri CP outline p. 35
170
Separation of Property Regime
A regime of separation of property may be established by agreement an excludes the legal regime by a judgment of separation of property.
A spouse may obtain a judgment decreeing separation of property where that spouse's interest in community property is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse; when a spouse is an absent person; when a petition for divorce has been filed; or when the spouses have lived separate and apart continuously for a period of six months.
A judgment decreeing separation of property terminates the legal regime retroactively to the date the petition for separation was filed or in the case of a pending previously filed petition for divorce, to the date of the filing for that petition for divorce, without prejudice to the rights validly acquired in the interim between the filing of the petition or motion and rendition of judgment.
Reconciliation reestablishes the legal regime retroactively to the day of filing the petition for separation unless spouses execute a matrimonial agreement prior to reconciliation.
Under a separation of property regime, spouses remain solidarily liable for obligations incurred by either spouse for necessaries obtained for family members (e.g. obligations arising from other spouse being in car accident and goes to emergency room), and spouses are obliged to contributes tot he expenses of the marriage according to their matrimonial agreement, or in the absence of such agreement in proportion to their means.
171
Creditor’s Rights Pending a Judgment for Separation of Property
Creditors may intervene in a proceeding to establish a separation of property if it is a fraud on their rights and may sue to annul a judgment of separation of property within one year from the date that the final judgment is rendered but may only assert nullity to the extent that they have been prejudiced.
172
Marital Portion
When a spouse dies rich in comparison with a surviving spouse (no concrete test but ordinarily awarded when asset comparison shows a ratio of at least 5 to 1; earning capacity of surviving spouse is irrelevant) they are entitle to claim the marital portion from the succession of the deceased spouse.
The marital portion consists of ¼ ownership of the succession (no children), ¼ usufruct of the succession for life (3 or less children), or usufruct over the child’s share of the succession for life (4 or more children) reduced by any legacy left to the surviving spouse by decedent or any amounts owed by surviving spouse to the decedent as a result of their death. A spouse that will be entitled to a marital portion during the administration of the succession has the right to demand and receive a periodic allowance from the succession representative (fixed by the court) and is charged with deficiency for any amounts received in excess of the marital portion they are entitled to.
The marital portion is a charge on the succession of the deceased spouse under any matrimonial regime and may be claimed by any surviving spouse even if separated upon proof that the separation occurred without the fault of the surviving spouse. The marital portion cannot be renounced or altered, is nonheritable (but the already submitted claim is), and prescribes three years from the date of death.
173
Types of Things
All things are Common (High seas), Public (navigable waters, territorial sea, seashore, highways, streets, public squares, key is being out of commerce), and private.
174
Bodies of Water
All natural navigable bodies of water are owned are public things and their use is free to all, defines as capable of being used for commercial traffic, even if not currently.
Canals built with private funds remain private even if they contain redirected public water.
Territorial sea is the gulf of mexico to the extent owned by Louisiana including lake pontchartrain and small irregularly shaped bodies of water in the vicinity of the open gulf.
Seashore is the space of land over which the the waters of the sea cover during winter highest-tide but not non navigable tidelands subject to indirect tidal overflow (Dardar).
The bottoms of navigable rivers and streams are state owned up to the ordinary low water mark, the bottoms of all other natural navigable water bodies are owned up to the ordinary high water mark. In determining whether something is a river courts consider it’s size and shape, depth and current in relation to waters flowing into it, and it’s historical designation.
The banks of navigable water bodies are defined as the land between the ordinary low and ordinary high water marks are private things subject to limited public use. That use must be incidental to navigation on the stream (e.g. mooring and docking must be permitted but not setting up a bait shop and there is no right to cross riparian land to make use of the public bank).
175
Rivers/Streams - Accretion, Alluvion, Dereliction, Erosion, Avulsion, Change of Course
Barbri Property outline p. 4-5
176
Roads
Roads are either public (publicly owned or privately owned but subject to public use) or private (not subject to public use).
Private roads may become public through dedication either Statutorily (recordation of a map or plat that describes streets, etc and dedicated the streets to public use), Tacitly (government maintains road for more than three years), or by Implication (shown through owner’s plain intent to dedicate and public’s clear intent to accept).
177
Types of Things
Generally, things can be moveable (e.g. car) or immoveable (e.g. land) and corporeal (e.g. safe) or incorporeal (e.g. property right).
Anything that is not immovable is movable.
178
Component Parts
A thing that is incorporated into a tract of land, building , or other construction in such a way as to become an integral part of the thing into which it is incorporated is a component part of that thing.
Building materials lose their separate identity as moveables when they are used in the construction of buildings and are thereby incorporated into the immoveable.
Generally, courts will consider things that complete a building, things that serve teh principal use of an other construction, and things that cannot be removed without substantial damage to the building or other construction to be component parts if specific criteria are met.
A component part of an immovable can be demobilized and converted into a moveable if: it is detached and removed or so damaged or deteriorated that it can no longer serve the use of the immovable (unless separated from the building for repair with the intention of returning them); or delivered to a good faith acquirer as a result of an act of translative ownership.
179
Land
Generally, tracts of land with their component parts are immovables.
180
Buildings
Buildings are always immovable and may be component or separate parts of the land on which they sit depending on whether there is unity of ownership between the landowner and building owner.
To determine whether a structure is a building the courts will consider whether it is to be inhabited by people, its cost, its permanence and the prevailing notions of what constitutes a building.
Things that are attached (e.g. more than just plugged in) to a building and, according to prevailing usages, serve to complete a building of the same general type (e.g. residential or commercial), regardless of the building’s specific use (e.g. doesn’t matter if hospital, motel, etc.) are component parts of that building (e.g. shutters, gutters, cabinetry, plumbing, heating, cooling, electrical, similar systems.
A thing attached to a building to such a degree that the thing cannot be removed without substantial damage to the thing itself or the building is component parts of that building.
181
Other Constructions, Unharvested Crops, Ungathered Fruits
Other constructions permanently attached to the ground (e.g. billboards), unharvested crops, and ungathered fruits that are owned by the owner of the ground are immovables because they are component parts of the land but when there is no unity of ownership, other constructions are moveables.
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 with respect to those crops or fruits.
Things that are attached to a construction other than a building that serve its principal use are it’s component parts (e.g. valves, piping, access ladders, lighting rods, and beacon lights are component parts of a water tower).
Attachments that do not further the principal use of an other onstruction do not constitute component parts (e.g. not a cellular telephone antenna bolted atop a water tower for convenient elevation).
A thing attached to an other construction to such a degree that the thing cannot be removed without substantial damage to the thing itself or the other construction is component parts of that other construction.
182
Timber
Standing timber is always immoveable and may be a component or separate part of the land on which it grows depending on whether there is unity of ownership between the person who owns the timber and the person who owns the land, once timber has been cut down it is a moveable.
The owner of the land can compel the separate owner of timber on his land to remove it within a reasonable time.
183
Immovables by Declaration
The owner of an immovable may register a thing as component part of that immovable if there is unity of ownership between the thing and the underlying immoveable so long as the thing is placed on the immovable for its service and improvement and so long as the immoveable is not a private residence.
Such records must be filed for registry in the conveyance records of the parish where the immovable is located.
184
Accession of Fruits
The owner of a thing acquires the ownership of its natural (animals/crops) or civil (rentals/dividends) fruits. Fruits are things derived from another thing without diminishing its substance. One who is entitled to fruits during a particular period acquires ownership of any natural fruits gathered during this period and any civil fruits that accrue during this period.
A possessor of a thing in good faith (one who possesses by virtue of an act translative of ownership who does not know of any defects in his title) owns the fruits that he has gathered and is entitled to reimbursement of expenses for ungathered fruits (but does not own them).
A possessor of a thing in bad faith (once defects in title are known or an action is instituted against him by the owner for recovery of the thing) must restore the fruits he has fathered (or their value) subject to his claim for reimbursement of expenses.
185
Accession of Products
Unlike fruits, products result in diminution of a thing (e.g. oil/gas) and belong to the owner of that thing. A possessor in good faith (not bad faith) has the right to reimbursement for expenses for products derived from the thing.
186
Accession of Improvements to Immovables
When a separate owner of improvements (e.g. buildings or other constructions permanently attached to the ground, standing timber, unharvested crops, and ungathered fruits) no longer has the right to keep them on the land of another, he may remove them but must restore the property to its former condition.
The builder of an improvement on a separately owned immovable can only claim separate ownership of the improvement if they can prove that the landowner consented to the improvement (and timely filing of instrument evidencing separate ownership in the the case of a claim against third party).
If the separate owner does not remove improvements within 90 days after written demand, the landowner may acquire ownership of the improvements after giving written notice and owes nothing to the original owner.
This does not apply to spouses.
187
Accession of Non-Improvement Component Parts
Unlike improvements, other component parts belong to the owner of the immovable who has the right to remove the incorporated parts but must restore the property to its former condition, if the builder fails to remove the component parts after written demand, the owner of the underlying immovable may have them removed at the installer’s expense or pay and keep it.
188
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 good or bad faith, on reimbursing the owner of the materials their current value and repairing the injury that he may have caused.
189
Constructions/Plantings/Works by Good Faith Possessors
When constructions/plantings are made by a possessor in good faith, the owner of the immovable is bound to keep them and pay either the cost or current value of the materials and workmanship or the enhanced value of the immovable. Unless the possessor’s activities did not improve the land (cut down favorite tree to configure house in weird way) in which case the owner has an action for damages.
190
Constructions/Plantings/Works by Bad Faith Possessors
When constructions/plantings are made by a possessor in good faith, the owner of the immovable may demand their demolition and removal at the expense of the possessor (and claim damages for injuries sustained) or keep them and pay either the current value of the materials and workmanship or the enhanced value of the immovable. Unless the possessor’s activities did not improve the land (cut down favorite tree to configure house in weird way) in which case the owner has an action for damages.
191
Transfer of Ownership - Immovables
Immovables are transferred between parties when they have confected a written agreement that transfers ownership and as to third parties when that instrument is filed in the conveyance office of the parish in which the immovable is situated.
192
Transfer of Ownership - Moveables
Movables are transferred between parties when they have voluntarily by contract transferred ownership and as to third parties when possession of the movable has been delivered to the transferee.
This has two effects, a good faith second purchaser (where the movable wasn’t delivered to the first purchaser) owns the moveable if delivered to him and a seller’s creditors can seize a sold moveable pre-delivery to satisfy an obligation.
193
Lost or Stolen Things
When the recipient of a lost or stolen item purchased the item in good faith (does not know or should have known that the transferor was not the owner) and from a merchant who customarily sells such things, then to reclaim the thing, the owner must reimburse the transferee his purchase price.
When the recipient of an item originally transferred in a transaction tainted with a vice of consent (fraud, duress, etc.) purchased the item in good faith AND paid fair value, they will get ownership over the original transferor.
This rule is subject to the laws of acquisitive prescription.
For cases not covered by these special rules the courts will typically weigh the relative innocence/negligence of the two parties to determine ownership.
194
Fruits and Products of Thing Held in Indivision
If one co-owner produce fruits and products from a co-owned thing, then all co-owners share the fruits and products of the co-owned thing in proportion to their ownership after deduction of the cost of production incurred by the producing co-owner.
195
Management of Thing Held in Indivision
Co-owners may individually use and manage the co-owned thing according to their agreement, or in the absence of an agreement according to the destination of the thing (e.g. historical use as retail space, but co-owner can petition court to determine use or management upon absence of agreement).
Co-owners are entitled to reimbursement for necessary expenses and expenses for ordinary maintenance and repairs subject to a reduction commensurate with the value of that co-owner’s exclusive enjoyment (e.g. unpaid rental/lease value).
196
Sale/Encumbrance of Thing Held in Indivision
Substantial alterations or improvements to property held in indivision require the consent of all co-owners. When a co-owner makes substantial alterations or improvements without such consent and they are consistent with the use of the property the co-owners are bound to keep them and pay either the cost or current value of the materials and workmanship or the enhanced value of the immovable.
When a co-owner makes substantial alterations or improvements without such consent and they are inconsistent with the use of the property, the co-owners may demand their demolition and removal at the expense of the improver (and claim damages for injuries sustained) or keep them and pay either the current value of the materials and workmanship or the enhanced value of the immovable.
197
Partition of Co-Owned Property
Partition can be excluded by agreement for up to 15 years (90 years for co-owners of electric generating plant/unit or site for such plant/unit) or excluded indefinitely if the thing held in indivision is indispensable for the enjoyment of another thing owned by one of the co-owners (e.g. graves of parents).
An extrajudicial partition may be rescinded on account of the ordinary vices of consent but also for lesion (if the value is less by over ¼ the fair market value of the portion to which they were entitled)
Co-owners may demand judicial partition in the absence of agreement either by partition in kind (If the thing can be divided into lots of nearly equal value without significantly lowering the value of the entire thing) or partition by sale (if it cannot be partitioned in kind) either through licitation (public auction) or private sale. This does not affect real rights burdening the thing to be partitioned and partition is imprescriptible.
198
Type of Ownership
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 - Ownership of usus, fructus, and abusus.
Naked Ownership - Ownership of abusus.
Usufruct - Ownership of usus and fructus.
Servitude - rights in things less than full ownership.
199
Distinguishing Between Personal and Predial Servitudes
A predial servitude is a charge on a servient estate for the benefit of a dominant estate and a personal Servitude is a charge on a thing for the benefit of a person, unless it is acquired by a person as owner of an estate for himself, his hers, and assigns in which case it is treated as a predial servitude.
200
Predial Servitudes
Predial servitudes are incorporeal immovables attached to “estates” which are specific corporeal immovables (tracts of land, buildings, and standing timber but not constructions other than buildings).
Predial servitudes must convey a benefit on a dominant estate but this need not exist at the creation of the servitude but may be a possible convenience or future advantage.
Predial Servitudes attach to the dominant and servient estates and continue through transfer in ownership (and cannot be alienated/encumbered separately from the dominant estate).
Predial servitudes do not require contiguity nor proximity but only that the situation of the estates allows one to derive some benefit from the charge on the other.
Predial servitudes are extinguished when there is unity of ownership between the dominant and servient estates.
The servient estate owner may be required by convention or law to keep his estate in suitable condition for the exercise of the servitude for the benefit of the dominant estate.
Predial servitudes (as well as building restrictions) may not impose upon the owner of the servient estate or his successors the obligation of paying a fee or other charge when the servient estate is alienated, leased or encumbered.
201
Predial Servitudes - Natural Servitudes v. Legal Servitudes
Natural servitudes arise from the natural situation of estates.
Legal Servitudes are limitations on ownership established by law for the benefit of the general public or particular persons.
202
Natural Drainage/Estate Bordering Running Water/Estate Through Which Water Runs.
An estate whose surface waters flow naturally to a lower estate is charged with a natural servitude to not impede said flow unless flow has been created by man or dominant estate has made the servitude more burdensome.
The owner of an estate bordering running water is the beneficiary of a natural servitude, charged to the body of water, such that he may use the water as it runs or assign access rights equal to his own provided that the withdrawal is environmentally and ecologically sound.
The owner of an estate through which water runs can use said water but is charged with the negative natural servitude not to stop or redirect the flow of said water onto bordering estates (must return water to its ordinary channel before it leaves his estate).
203
Keeping Buildings in Repair
The owner of a building is charged with the legal servitude to keep that building in repair so that it will not fall and cause damage to a neighbor or passerby.
204
Projections
A landowner is charged with the negative legal servitude not to build projection beyond the boundary of his estate.
205
Rain Drip From Roof
The landowner is charged with the legal servitude to fix his roof so that rainwater does not fall on the ground of his neighbor.
206
Encroaching Buildings
When a landowner in good faith constructs a building that encroaches on an adjacent estate and the encroached upon landowner does not complain within a reasonable time after he knew or should have known of the construction (or complains only after substantial completion of the structure) the court may allow the building to remain in which case the encroaching landowner acquires a predial servitude over the land occupied by the building on payment of compensation for the value of the servitude and other damages.
One may acquire property encroached beyond the boundary of one’s title by acquisitive prescription if the encroachment constitutes possession, the possession is within visible bounds and there some juridical link to the encroachment (10 years if good faith 30 if not).
207
Common Walls
A landowner who builds first has the right to rest half the wall on his neighbor’s property if it is made of solid masonry, at least as high as the first story, and no more than 18in thick plus 3in of plastering, thereby creating a predial servitude for the benefit of his estate.
Such a wall may become common if the neighbor immediately pays ½ of its cost or later pays ½ of its then-current value.
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.
Co-owners of a common wall share expenses for necessary repairs in proportion to their interests but may be relieved of that obligation by abandoning his right to use that wall in writing provided that he does not have construction supported by that wall).
208
Common Fences
Fences on a boundary are presumed to be common, landowners may only compel his neighbors to contribute to the expense of constructing/repairing common fences as prescribed by local ordinances.
209
Common Ditches
A ditch between two estates is presumed to be common unless there is proof to the contrary and adjoining owners are responsible for maintenance of a common ditch.
210
Plants
Trees, bushes, and other plants on a boundary line are presumed to be common.
Common or private trees/plants on boundary lines may be removed by either landowner at his expense if the tree/plant interferes with enjoyment of his property.
Individuals are free to dispose of trees/plants within their property as they wish but can be required to trim the roots or branches of a tree/plant that extend onto the property of a neighbor and interfere with his enjoyment.
211
Enclosed Estates
An owner of an estate that has become enclosed has a right of passage over neighboring property to the nearest public road.
This legal servitude is limited to traffic reasonably necessary to provide access via the shortest route that is least injurious to the servient estate.
The owner of the dominant estate is permitted to construct a road as necessary provided that any damages to servient estate are paid.
The owner of the dominant estate has no right to relocate this servitude after it is fixed but the owner of the servient estate may relocate the servitude to a more convenient place at his own expense so long as it affords the same facility to the owner of the enclosed estate.
In the case of partition/alienation that causes an enclosed state (even when not mentioned in the act of partition/alienation) passage shall be furnished gratuitously to the enclosed estate owner even if it is not the shortest route to the public road unless estate becomes enclosed due to the voluntary act of its owner (does not apply to an estate enclosed with a servitude granted in partition prescribes).
212
Conventional Servitudes
Conventional servitudes are established on or for the benefit of distinct corporeal immovables.
Common examples of conventional servitudes include support, view, prohibition of view, light, prohibition of light, and passage.
Doubt as to the existence, extent or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.
213
Establishing Conventional Servitude by Title
Conventional servitudes may be established by all acts by which immovables may be transferred and are subject to the same substantive form requirements.
214
Establishing Conventional Servitude by Destination of the Owner
When there is a common owner of two parcels of land that share a relationship that would have been a servitude had the estates been owned by two different people, then said servitude comes into existence when the common owner ceases to own both parcels.
The resulting servitude can be apparent (the common owners intention must be evidence by the presence of exterior signs) or nonapparent (the owner must have previously filed for registry a formal declaration establishing the destination).
215
Establishing Conventional Servitude by Acquisitive Prescription
An apparent (but not nonapparent) predial servitude may be acquired by acquisitive prescription of ten years (good faith and just title) or thirty years.
216
Necessary Works by Dominant Estate Owner - Conventional Servitudes
The owner of the dominant estate may make at his expense all works necessary for the use and preservation of the servitude and may enter the estate for this purpose and deposit materials there but must cause as little damage as possible and clean up mess as soon as possible.
217
Division of Dominant Estate - Conventional Servitudes
If the dominant estate is divided, the servitude remains as to each part provided that the servitude does not become more burdensome on the servient estate.
218
Rights of Servient Estate Owner - Conventional Servitudes
The owner of the servient estate can do nothing to interfere with the servitude unless the original position of the servitude becomes more burdensome (or they are prevented from making repairs) they can move the servitude to an equally convenient place and the dominant estate must accept.
219
Mandatary - Conventional Servitudes
Mandatary can establish a predial servitude only if he has an express and special power to do so.
220
Naked Owner - Conventional Servitudes
Naked owner can establish a servitude unless it infringes on the rights of the usufructuary, in which case he must obtain consent.
221
Usufructuary - Conventional Servitudes
Usufructuary cannot establish predial servitudes.
222
Owner - Conventional Servitudes
Owner for a term or condition can establish servitude but it ceases with his right.
223
Co-owner - Conventional Servitudes
Co-owner must get consent from other co-owners to establish a predial servitude. Without consent, the execution of the servitude is suspended and the grantor co-owner lacks standing to exercise of the servitude.
224
Property Burdened by Existing Servitudes - Conventional Servitudes
The owner of a servient estate may not grant servitudes that interfere with existing servitudes charged to that estate.
225
Mortgaged Property - Conventional Servitudes
Predial servitudes may be established on mortgaged property, but a mortgagee may demand payment if the property value is diminished.
226
Public Things - Conventional Servitudes
Servitudes may be established on public things, including property of the state.
227
Multiple Estates - Conventional Servitudes
An estate may be charged with a servitude benefitting several estates and vice versa.
228
Reciprocality - Conventional Servitudes
Single may establish reciprocal/reflexive servitudes between two estates.
229
Future Acquisition - Conventional Servitudes
Parties may agree that a servitude will exist on the property if ever acquired in the future even if they do not own it presently.
230
Alteration of Legal and Natural Servitudes - Conventional Servitudes
Legal and natural servitudes may be altered by agreement of both parties if the public interest is not affected adversely.
231
Destruction of Dominant Estate - Extinction of Conventional Servitudes
A servitude is extinguished upon the total and permanent destruction of the dominant estate or the part of the servient estate burdened with the servitude. Temporary uselessness does not terminate, automatically reinstates once servitude becomes useful again.
232
Prescription of Nonuse - Extinction of Conventional Servitudes
Conventional servitudes are extinguished by ten years of nonuse (Does not apply to natural/legal servitudes).
For affirmative servitudes, prescription commences on the date of creation, is interrupted by use, and re-starts after termination of use. Use by a co-owner applies to all co-owners, use by a third party applies to the owner if the use can be construed as appertaining to the dominant estate, and partial use of a servitude constitutes use of the whole (continuing to trim bushes on power line that you are not running power through is NOT partial use of the power-running servitude).
For negative servitudes, prescription commences from the date of contrary act.
Prescription is suspended where the owner of the dominant estate is prevented from using the servitude by an obstacle they are powerless to remove but not by destruction of building on dominant estate or dominant estate owners disability or minority.
233
Confusion - Extinction of Conventional Servitudes
A servitude is extinguished according to the principle of confusion where both the dominant and servient estates are acquired in their entirety by the same person.
234
Abandonment by Owner of Servient Estate - Extinction of Conventional Servitudes
If the owner of a servient estate abandons his estate or the part of it burdened with the servitude in a written act, the owner of the dominant estate is bound to accept it and confusion takes place (heh).
235
Renunciation by Owner of Dominant Estate - Extinction of Conventional Servitudes
The owner of a dominant estate can extinguish a servitude by expressly renouncing the servitude in writing.
236
Dissolution of the Right of the Grantor - Extinction of Conventional Servitudes
A predial servitude is extinguished by the dissolution of the right of the person who established it.
237
Building Restrictions
Building restrictions are charges imposed by the owner of an immovable pursuant to a general plan (that must be feasible and capable of being preserved) that governs building standards, specific uses, and improvements.
If a building restriction is valid, it imposes reciprocal rights and charges on all affected property.
Rules governing predial servitudes govern building restrictions unless they are incompatible with the nature of building restrictions.
238
Establishing Building Restrictions
Building restrictions can only be established by juridical act of all the owners of the affected immovables, but can be amended less-than-unanimously to increase or decrease restrictions.
239
Enforcement of Building Restrictions
Building restrictions may be enforced by mandatory and prohibitory injunctions and violators may be sued for damages.
All landowners subject to the building restrictions (as well as any landowners or homeowners association) may sue to enforce a building restriction.
240
Defenses to Violation of Building Restrictions
Liberative Prescription - No suit for violation of a restriction may be brought after two years of the commencement of a noticeable violation (effectively frees violating estate from that restriction).
Abandonment - Building restrictions terminate by abandonment of the whole plan or by the abandonment of a particular restriction (e.g. a sufficient number of violations with respect to the total number of lots affected by the restriction).
241
Residential Planned Communities
Barbri Property outline p. 40-41.
242
Types of Personal Servitudes
Usufruct, Right of Habitation, Right of Use
243
Nature of Usufruct
Usufruct is the real right of limited duration to use the property of another and enjoy its fruits.
Usufruct is incorporeal and is moveable/immovable in accordance with the property to which it attaches and can be conventional (usufructuary title over land) or legal (parents usufruct over minor children’s possessions).
Neither a usufructuary nor a naked owner can compel a partition of the dismembered ownership unless a usufructuary and a naked owner whose interests are complementary (they can combine their respective interests and be treated as a full owner for purposes of provoking partition of the property).
Usufructuary may not establish any charges in the nature of predial servitudes upon the state over which he has usufruct (but may convey a personal right of enjoyment for the term of the usufruct.
244
Co-usufructuary
The default rule is that usufruct is granted in undivided shares and inures to the the benefit of the surviving usufructuary but usufruct can be granted in divided shares in which case it inures to the benefit of the naked owner.
245
Usufruct Over Consumable
Consumables ar thing that cannot normally be used without their substance being changed such as money, food, stock of merchandise, bonds payable to usufructuary or bearer, matured credits for the payment of a sum of money, matured/payable-on-demand promissory notes.
Usufructuary may consume, alienate or encumber consumables as he sees fit but is required upon termination of the usufruct to either pay the value of the consumed items at commencement or replace consumed items with like things of the same quantity and quality.
246
Usufruct over nonconsumable
Nonconsumables are things that can be used multiple times without their substance being altered, even if they are eventually totally worn out by normal use, wear, and decay.
Usufructuary may possess and derive utility profits and advantage produced from nonconsumables but is obliged to preserve their substance as a prudent administrator and deliver them to the naked owner at the termination of the usufruct.
247
Usufructuary Disposition of Nonconsumables Without Express Right
In general nonconsumables may not be disposed of by the usufructuary without permission of the naked owner wihtout an express grant of disposition.
However the usufructuary may dispose of corporeal nonconsumable movables that are gradually impaired by use, acting as a prudent administrator, but if the property received is less than the value of the property alienated at the time of alienation, the usufructuary is bound to pay the difference to the naked owner at the termination of the usufruct.
The usufructuary has no obligation to dispose of impaired corporeal movables and no duty to restore them to the naked owner if they are entirely worn out by normal use.
248
Usufructuary Expressly Granted Right of Disposition Over Nonconsumables
A usufructuary who has been expressly granted the right of disposition over a nonconsumable may lease it for a term beyond the termination of usufruct but must account to the naked owner for any diminution to the nonconsumable attributable to the lease.
A usufructuary who has been expressly granted the right of disposition over a nonconsumable may encumber it to secure a debt but is bound to remove the encumbrace at the termination of the usufruct.
A usufructuary granted a right of disposition may alienate the property but cannot donate it and is obligated to pay back the value of any thing donated at the termination of the usufruct.
249
Usufruct over Civil Fruits v. Natural Fruits
Usufructuary is entitled to the fruits that accrue during the usufruct and owes no accounting for them.
Natural fruits (derived from nature) accrue when severed whereas civil fruits (rents, royalties, interest, dividends) accrue day to day (e.g. if usufruct for 9 months, then get ¾ of the annual rent even if not due till after usufruct terminates).
250
Usufruct Over Juridical Person
Usufructuary has the right to vote shares of stocks or exercise similar rights of juridical persons over which they have usufruct unless otherwise provided.
Usufructuary has the right to receive cash dividends declared during the usufruct, however stock dividends, splits, redemptions, and liquidating dividends go to the naked owner subject to the usufruct and stock warrants and subscription rights belong to the naked owner free of the usufruct.
251
Usufruct Over Tress
Ordinary usufruct of land does not include the right to cut down trees unless usufructuary removes trees for his own use on the property (make roof) or trees are considered timberland (capable of producing timber in paying quantities) in which case he may retain the proceeds of timber operations (including clear-cutting) so long as he manages the timberlands as a prudent administrator.
252
Usufruct Over Animals
The usufructuary must manage herds of animals as a prudent administrator and replace dead animals in the herd from the increase in the herd but is not liable to naked owner if the entire herd dies without usufructuary’s fault.
The usufructuary may sell or trade the herd but must pay the naked owner the value of the herd when sold, he also may be required to invest the proceeds under article 618.
253
Usufruct Made Improvements
The usufructuary has the right to remove all improvements he has made but must restore the property to its former condition.
If the improvements cannot be removed and usufructuary obtained written consent from the naked owner for the improvements or if the improvements were judicially authorized (must be prudent administration and give notice to naked owner and receive court approval) then the usufructuary has the right to set-off the value of the improvements against damages owed to the naked owner.
254
Disposition of the Right of Usufruct
A usufructuary may lease, alienate, or encumber his right of usufruct but is liable to the naked owner for any abuse of the property caused by the person with whom he contracted.
255
Duties of Usufructuary
Usufructuary has a duty to have an inventory made and may be prevented for entering into possession by the naked owner if they fail to do so.
Usufructuary may be required to give security in an amount of the value of the property subject to the usufruct except for legal usufructs (parents with usufruct over minor children property, unless stepchildren or forced heirs, to the extent of their legitime) and sellers/donors who reserved a usufruct.
Usufructuary is liable for losses if he fails to act as a prudent administrator measured by the care that a careful person would exercise in the administration of his or her own affairs and for losses resulting from fraud, default, or neglect.
Usufructuary must make all ordinary repairs/maintenance and may be compelled to do so by the naked owner.
The Naked owner is responsible for extraordinary repairs (reconstruction of the whole or a substantial part of the property) but cannot be compelled to do so by the usufructuary. The usufructuary is entitled to compensation for any such repairs he chooses to make without interest. The usufructuary must pay for extraordinary repairs if caused by his fault.
The usufructuary is responsible for all annual charges and periodic charges (e.g. property taxes) that are imposed on the thing during the usufruct.
The usufructuary may have a duty to insure based on the standard of a prudent administrator.
256
Rights of Naked Owner
The naked owner may dispose of his right of naked ownership or establish real rights so long as the usufructuary’s rights are not thereby impinged.
257
Duties of Naked Owner
The naked owner is responsible for extraordinary repairs (reconstruction of the whole or a substantial part of the property) but cannot be compelled to do so by the usufructuary. The usufructuary is entitled to compensation for any such repairs he chooses to make without interest. The usufructuary must pay for extraordinary repairs if caused by his fault.
The naked owner may not make alterations to the property without consent and may not interfere with the enjoyment of the usufruct.
258
Sale of Usufruct Property to Satisfy Pre-Usufruct Encumberance
Satisfaction of a pre-usufruct debt (e.g. mortgage) terminates the usufruct, but the usufruct attaches to any proceeds that remain from the sale after satisfaction of the debt.
Usufructuary may prevent the sale by advancing funds to discharge indebtedness in which case the naked owner must reimburse the usufructuary upon termination of the usufruct of the reduction in principal and any pre-usufruct interest (and co-usufructs can collect from co-usufructs that fail to advance their share).
If usufructuary refuses to pay debt and naked owner pays off debt, they may demand that the usufructuary pay him interest during the usufruct.
259
Sale to Satisfy Usufructuary’s Debts
A judicial sale of the usufruct by creditors of the usufructuary deprives the usufructuary of his enjoyment of the property but does not terminate the usufruct.
260
Termination of Natural Usufructuaries
A usufruct in favor of a natural person terminates upon the death of the usufructuary even if given for a term of years or upon term or condition stipulated (e.g. wife’s remarriage under 890 spousal usufruct)
261
Termination of Juridical Usufructuaries
A usufruct in favor of a juridical person terminates upon the expiration of a specified term, the dissolution or liquidation of the juridical person (but not conversion, merger, or consolidation thereof), or 30 years, whatever is shortest.
There is an exception for juridical persons in their capacity as the trustee of a trust.
262
Prescription for Nonuse of Usufructuary
10 years same as all conventional servitudes.
263
Confusion of Usufructuary
When the usufruct and the naked ownership are united in the same person (and coordinate) the usufruct terminates by confusion.
264
Abuse of Usufruct
Abuse is a serious violation of the obligation to preserve the substance of a nonconsumable and may result in termination of the usufruct, but is not automatic.
265
Express Renunciation of Usufructuary
Renunciation by a usufructuary must be express and in writing.
266
Destruction of Property Subject to Usufruct
The permanent and total loss of destruction of nonconsumables will terminate the usufruct but if the destruction is caused by a third party the usufruct with attach to the proceeds from any suit for damages (normally the usufructuary is the proper party to bring the suit).
267
Change in Form of Property Subject to Usufruct
When the property subject to the usufruct changes form due to an involuntary conversion due to the actions of third persons, the usufruct terminates over that property but all proceeds will be subject to the usufruct and the naked owner can demand security wihtin one year of the usufructuary’s receipt of the proceeds.
268
Sale or Exchange of Property Subject to Usufruct
If the property subject to the usufruct is sold or exchanged (whether in an action for partition, by agreement with the naked owner, or by a usufructuary with the right of disposition) the usufruct attaches to the proceeds (less taxes or expenses incurred) and the naked owner can demand security within one year of the usufructuary’s receipt of the proceeds.
269
Insurance Proceeds From Loss of Property Subject to Usufruct
When proceeds are due because of loss of property subject to a usufruct, the usufruct attaches to the proceeds and the naked owner can demand security wihtin one year of the usufructuary’s receipt of the proceeds.
If a usufructuary or naked owner separately insures their interest, then the proceeds belong to the insured party.
270
Right of Habitation
The right of habitation is a nontransferable real right of a natural person to dwell in the house of another, is established and extinguished in the same manner as a usufruct, and imposing the duty on the right holder to use the property as a prudent administrator and delivery the property to the owner in the condition in which he received it, ordinary wear and tear excepted.
271
Right of Use
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 use is a personal servitude that confers a specified use of an estate less than full enjoyment, may be established in favor of a natural or legal entity and generally governed by the rules of usufruct except for termination (not based on the life/dissolution of the entity).
The right of use is transferable unless prohibited by law or contract.
272
Acquisitive Prescription of Immovables
Ownership of immovables can be acquired by the prescription of either 10 or 30 years.
The elements required for 10-year acquisitive prescription of susceptible immovables include possession for 10-years, in good faith, with just title to property.
30-years acquisitive prescription of immovables does not require just title or good faith.
The Louisiana Constitution does not allow a parish or political subdivision of the state to acquire title to immovable property through thirty-year acquisitive prescription.
273
Acquisitive Prescription of Moveables
Ownership of movables can be acquired by the prescription of either 3 or 10 years.
The elements required for 3-year acquisitive prescription of susceptible movables include possession for 3-years, in good faith, with an act sufficient to transfer ownership.
10-years acquisitive prescription of moveables does not require just title or good faith.
274
Things not Susceptible of Acquisitive Prescription
All private things are susceptible of prescription unless legislation provides otherwise. however, prescription does not run against the state even if the thing is private, common and public things are not susceptible of prescription.
275
Acquisitive Prescription Over Absent Persons/Incompetents/Minors/Interdicts
Acquisitive prescription runs against all.
276
Acquisitive Prescription Over Boundary Encroachments
One may acquire property encroached beyond the boundary of one’s title by acquisitive prescription if the encroachment constitutes possession, the possession is within visible bounds and there some juridical link to the encroachment (e.g. place fence 50 feet beyond property boundary (10 years if good faith 30 if not).
277
Good Faith
A possessor is in good faith if he reasonably believes in light of objective consideration that he is the owner of the property.
Good faith is needed only at the commencement of the possession.
Good faith is presumed but may be rebutted with proof that the possessor knows or should have known that he is not the owner of the possessed thing. An error or fact of law in itself is not sufficient to defeat good faith unless such error destroys the honesty or reasonableness of his belief.
The test is whether a person of ordinary business experience would believe that the transferor is the owner of the property and court will look to objective factors such as reasonableness of the price and whether the property is sold without warranty of title.
278
Quitclaim Deeds and Good Faith
A quitclaim deed does not automatically destroy the presumption of good faith but is a factor to consider in evaluating the transferee’s good faith.
279
Title Searches and Good Faith
Title examination is not required for good faith nor are they sufficient to show bad faith.
280
Just Title
Just title is a juridical act sufficient to transfer ownership or other real right if it had been executed by the real owner (e.g. act of sale, donation, exchange but not lease or loan).
Just title must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.
281
Possession
To be a possessor, one must intend to possess the thing as owner (animus) and exercise physical acts of use, detention, or enjoyment over a thing (corpus).
The law presumes that a possessor that satisfies the corpus element with respect to a thing intends to possess that thing as owner unless that person began to possess in the name of and for someone else.
Acts sufficient to constitute corporeal possession depend upon the use for which the land is destined (e.g. surveying and loging sufficient for swampland).
Under the principle of civil possession corporeal possession can be maintained by the intention to possess even when actual possession has ceased (e.g. physically possess, pay taxes, cease physical possession but continue to pay taxes).
282
Tacking Possession
When possession is transferred through universal title (inheritance), the possession of the transferor is added to the possession of the transferee as long as there has been no interruption of possession regardless of the transferees good faith at the time of transfer.
When possession is transferred through specific title (donation/sale), the possession can only tack if the transferee was in good faith at the time of transfer.
283
Constructive Possession
Under the principle of constructive possession, one who corporeally possesses part of an immovable by virtue of a tile is deemed to possess within the limits of his title.
For constructive possession, the possessor can lack valid title and/or good faith.
For constructive possession, the land must be contiguous (e.g. not bifurcated by public road/navigable river).
Without title one possesses only the area one actually possesses, inch by inch or within natural boundaries.
284
Precarious Possession
Possession is precarious when it is with the permission of or on behalf of the owner or possessor and is presumed to continue regardless of the precarious possessor’s intent.
Precarious possession is terminated when the possessor gives actual notice of this intent to the person on whose behalf he is possessing or, in the case of co-owners, by overt and unambiguous acts sufficient to give notice to his co-owner of his intent to possess (e.g. acquisition and recordation of a title by someone other than a co-owner).
285
Vices of Possession
Possession that is violent, clandestine, discontinuous or equivocal has no legal effect.
286
Loss of Possession
Possession is lost if the possessor manifests his intention to abandon possession or if they are evicted by another by force or usurpation.
Acquisitive prescription is interrupted when possession is lost unless the possessor recovers possession within one year or later as the result of an action filed within one year.
287
Competing Possessions
Only one person can be in possession of of the same property at the same time.
Once someone acquires possession, they remain in possession until that possession is lost through abandonment or eviction.
To gain possession through eviction a second possessor’s acts must effectively prevent the first person from exercising acts of possession for at least a year.
Corporeal possession trumps civil and constructive possession and can only be evicted by other corporeal possession.
288
Taking Possession of an Unowned Thing/Animal/Treasure
Under the principle of occupancy, one can obtain ownership of an unowned corporeal moveable by taking possession of it (e.g. getting a fish from a lake or oil from the ground).
Wild animals are deemed unowned and a captor obtains ownership even if captured on the land of another without the landowner’s permission. Wildlife in enclosure/aquariums/private waters are privately owned. Domestic animals are those which are tame by nature or have been accustomed to association of man or been subjected to his will and have no disposition to escape his dominion.
Treasure is defined as a movable hidden in another thing (moveable or immovable) for such a long time that the owner cannot be determined. Treasure found in a thing belonging to no one belongs to finder, treasure found in the a thing belonging to another is split between the owner and the finder.
289
Fixing Boundaries
Barbri Property outline p. 67-69
