Property Flashcards
(132 cards)
1
Q
Common Things
A
may not be owned by anyone and may be used freely by everyone in the manner that nature intended
2
Q
Public Things
A
Are vested in the state or one of its political subdivisions in its public capacity.
Use of them is open to all, but may be restricted for the public’s benefit.
Public things include natural navigable waters, the territorial sea, seashore, highways, streets, and public squares.
Public things are inalienable.
3
Q
Private Things
A
Are owned by private individuals or by the state or one of its political subdivisions in its private capacity.
Anything that is not common or public is private.
Private things are susceptible to alienation.
4
Q
What type of property are the High Seas?
A
common thing
5
Q
Territorial Sea
A
public thing
Territorial sea is: (i) the Gulf of Mexico within the territorial limits of the State of La, (ii) Lake Pontchartrain, and (iii) under the arms of the sea doctrine, those bodies of water in the vicinity of the open gulf that are directly overflowed by the tides.
6
Q
What type of property is the Seashore?
A
public thing
The space of land over which the waters of the sea spread in the highest tide during the winter season.
The state’s ownership extends to that land normally covered by the waters of the Gulf during the high tides of the winter season.
7
Q
Beds of Navigable Rivers
A
State owns these to the ordinary low water mark
8
Q
Banks
A
The land between the ordinary high and low water mark.
When there is a levee established according to law, that establishes the bank.
9
Q
Lakes
A
The state owns the bed of lakes to the high water mark.
10
Q
Factors for determining whether something is a river or a lake
A
size and shape
depth
history
current
11
Q
Accretion
A
the slow and imperceptible deposit of soil on land abutting a body of water
12
Q
Alluvion
A
the accretion that forms successively and imperceptibly on the bank of a river or stream
13
Q
Dereliction
A
the successive, imperceptible, and permanent receding of water from the bank of a river or stream
14
Q
Division of Alluvion
A
If alluvion forms in front of the property of several owners, each owner is entitled to a fair proportion of the area of the alluvion and a fair proportion of the new frontage, depending on the relative values of the frontage and acreage.
15
Q
Erosion
A
occurs when land subsides, resulting in once dry land being permanently submerged into the river bed.
When erosion occurs in any type of navigable water body, the state gains ownership of the submerged land.
16
Q
Avulsion
A
If an identifiable piece of ground is moved from one place to another by the “sudden action” of the water of a river or stream, the original owner may claim it.
Suit must be brought within a year, or later if the owner of the bank to which the land has become united has not taken possession.
17
Q
Change of Course
A
When a stream changes course, all who lost land in the process will be able to take from the abandoned riverbed in proportion to the land lost.
18
Q
Dedication
A
Private property may be donated for public use through dedication.
Four types: formal, statutory, tacit, and implied.
19
Q
Formal Dedication
A
Occurs when there is a valid donation through a written act.
20
Q
Statutory Dedication
A
Occurs when there is substantial compliance with the statute, which requires the recordation of a map or plat that describes the land and dedicates it to public use.
This is the most common way that roads become public.
21
Q
Tacit Dedication
A
If a governing authority maintains a road for more than three years, it becomes public through tacit dedication.
22
Q
Implied Dedication
A
Requires the owner’s plain intent to dedicate the road and the public’s clear intent to accept.
Mere tolerance of public use does not give rise to implied dedication.
23
Q
Incorporeal Things
A
Have no body and must be comprehended solely by understanding
24
Q
Corporeal Things
A
Have a body and can be felt or touched
25
Buildings
always immovable
When there's no unity of ownership between the ground and the building, the building is a separate immovable and is not a component part of the land.
When there is unity of ownership between the ground and the building, the building is still an immovable because it is a component part of a tract of land.
26
Other Constructions Permanently Attached to the Ground
If there's unity of ownership, it's an immovable because it's a component part of the tract of land.
If there's no unity of ownership, it's movable.
27
Factors for determining whether something is a building OR an other construction permanently attached to the ground
whether it is to be inhabited by people
its cost
its size
its permanence
prevailing notions of what constitutes a building
28
Standing Timber
always immovable
When there's unity of ownership, it's immovable as a component part of the tract of land.
When there's no unity of ownership, it's a separate immovable which is not a component part of the tract of land.
29
Landowner's right to demand removal of standing timber
The owner of the land can compel the owner of the separately owned timber to remove it within a reasonable time.
30
Component Parts
A thing that is incorporated into a tract of land, a 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.
31
Factors for determining whether a thing has become a component part of a building or other construction
Is it a thing that's attached to the building/other construction and does it, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use?
à doors, shutters, gutters, plumbing, heating
Is it a thing that's attached to the building/other construction and does it serve the building/OC's principal use? Ã a lightning rod installed on a water tower to protect the tower furthers its principal use and thus is a component part
Is it a thing that's attached to the building/OC to such a degree that it can't be removed without substantial damage to it or the building/OC?
32
Unharvested crops and Ungathered fruits of trees
If there's unity of ownership, these are owned by the owner of the ground and are immovable as a component part of the tract of land.
If there's no unity of ownership, they are movables.
33
Immovables by Declaration
Owners may "declare" and register things such as appliances, farm equipment, and machinery as component parts of an immovable.
Four conditions must be met: unity of ownership, immovable is not a residence, the component part is placed on the immovable for its service and improvement, and the declaration must be filed for registry in the conveyance records of the parish where the immovable is located.
34
Ways in which a component part of an immovable can be deimmobilized (converted from an immovable into a movable)
Damage: when the component part is so damaged or deteriorated that it can no longer serve the use of the immovable
Detachment and Removal: when the owner of the immovable detaches or removes a component part
\* When third-party rights exist, detachment and removal generally do not deimmobilize a component part. Nonetheless, deimmobilization will occur, even to the prejudice of such third persons, when the owner of the immovable has transferred the thing and delivered it to an acquirer in good faith.
\* Materials separated from a building for repair with the intention of returning them are not deimmobilized. They remain immovable.
35
Movables
Anything that is not immovable is movable.
36
Movables by Anticipation
Unharvested crops or ungathered fruits owned or encumbered by a security interest held by someone other than the landowner are "movables by anticipation."
The owner of land can mobilize by anticipation crops or fruits that belong to him by an act translative of title or by granting a security interest.
37
Accession
Ownership of a thing includes by accession everything that it produces or is united with it, subject to certain exceptions.
38
Fruits
Things derived from or produced by another thing without diminution of its substance
39
Division of Fruits
One who is entitled to natural fruits during a particular period acquires ownership of any natural fruits **gathered** during the period.
One who is entitled to civil fruits during a particular period acquires ownership of any civil fruits that **accrue** during the period.
40
What is a possessor in good faith for fruits purposes?
A possessor in GF is one who possesses by virtue of an act translative of title and does not know of any defects in his title.
GF terminates when defects in title are made known to him or an action is instituted against him by the owner for the recovery of the thing.
41
Possessor in GF's right to fruits
A possessor in GF owns the fruits that she has gathered.
She does not own ungathered fruits, but she is entitled to reimbursement for expenses in cultivating them.
42
Possessor in Bad Faith's Right to Fruits
BF possessor must restore the fruits he has gathered (or their value), subject to his claim for reimbursement of expenses.
He has no rights re: ungathered fruits.
43
Products
Products result in a diminution of the thing.
They are non-renewable resources.
44
Ownership of Products
Products belong to the owner
45
Right of Separate Owner to Remove Improvements
When the separate owner of improvements 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.
If the separate owner does not remove them within 90 days of written demand, the landowner may acquire ownership of the improvements after giving written notice to the separate owner. If the landowner appropriates ownership in this way, he owes nothing for the improvements.
46
Ownership of Component Parts
Other component parts and integral parts belong to the owner of the immovable.
47
Constructions by GF Possessors
The owner of the immovable may not demand the demolition and removal of constructions, planting or works made by a possessor in good faith.
The owner is bound to keep them and at his option must pay to the possessor either (1) the cost of the materials and workmanship, (2) their current value, or (3) the enhanced value of the immovable.
48
Constructions by BF Possessors
The landowner may demand their demolition and removal at the expense of the possessor and claim damages for the injury that he may have sustained.
Alternatively, the landowner may keep them and pay at his option either (1) the current value of the materials and workmanship, or (2) the enhanced value of the immovable.
49
Rights of Landowner when Possessor's Activities Did Not Improve Property
If the possessor's activities did not improve the land, the landowner has an action for damages.
50
Transfer of Immovables
(When Effective)
As between the parties à when there's a written agreement that transfers ownership
As to third parties à when the instrument is filed in the conveyance records of the parish in which the immovable is situated
51
Transfer of Movables
(When Effective)
As between the owner and the transferee → according to their agreement
As to third parties → when possession of the movable has been delivered to the transferee
52
Lost and Stolen Things
Rule
If a thing is lost or stolen, the person having possession of it cannot transfer its ownership to another.
However, if a lost or stolen thing was sold by authority of law, then the person to whom the thing was sold by authority of law will prevail against the former owner and no reimbursement will be due to any party.
53
Stolen
The true owner did not consent to the possession by another.
It does NOT mean that the true owner voluntarily transferred ownership to another as a result of fraud.
54
Recovery of Lost/Stolen Things
When the owner is able to recover the lost or stolen thing from the transferee, the owner must reimburse the transferee his purchase price if the transferee bought the thing in GF from a merchant who customarily sells such things.
55
Effect of Transfer of Ownership that Occurred due to a Vice of Consent
If an owner of a thing transfers ownership to a transferee in a transaction tained with a vice of consent, and the transferee then transfers ownership to a third party, the third party gets ownership fo the thing if he is in GF and has paid fair value for the thing.
56
Requirement for Transfer of a Registered Movable
Generally, this requires a certificate of title.
57
Ownership in Indivision
(Generally)
Ownership of the same thing by two or more persons.
The shares of all co-owners are presumed to be equal.
58
Rights and Duties of Co-Owners:
Fruits and Products
If fruits or products are produced by one co-owner, 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.
59
Rights and Duties of Co-Owners:
Use and Management of a Co-Owned Thing
Absent a governing agreement, co-owners may use and manage a co-owned thing in accordance with these principles:
(a) By Destination of the Thing
(b) By Court Order: court determines the thing's use or management upon petition by a co-owner
(c) Alienation: a co-owner has freedom of disposition of his share of the co-owned thing, but all the co-owners must consent to a lease, alienation, encumbrance, substantial alteration, or substantial improvement of the entire co-owned thing.
60
Rights and Duties of Co-Owners:
Right to Reimbursement of Expenses
A co-owner is entitled to reimbursement for necessary expenses and for expenses for ordinary maintenance and repairs, subject to a reduction commensurate with the value of that co-owner's exclusive enjoyment.
61
When a Co-Owner Makes Improvements Without Consent
If the improvement is consistent with the use of the property and "improver" did not get the consent of all co-owners first → other co-owners may not demand their demolition and removal. They must keep them and pay to the "improver" either the cost of the materials and workmanship, their current value, or the enhanced value of the immovable.
If the improvement is inconsistent with the use of the property OR the improvements are made over the express objections of a co-owner → the other co-owners may either demand their demolition and removal at the expense of the improver and claim damages for the injury that they may have sustained; or keep them and pay at their option either the current value of the materials and workmanship or the enhanced value of the immovable.
62
Right to Partition Co-Owned Property
No one can be compelled to hold property in indivision with another person unless agreed to or provided for by law.
A co-owner has the right to demand partition of a thing held in indivision.
63
Excluding Partition Among Co-Owners
By contract → can be excluded for up to 15 years, except that persons holding in common an electric generating plant or unit,or the site of such plant or unit, may exclude partition by agreement for up to 99 years.
By Donation → a donor/testator may order that the thing donated not be partitioned for a period of 5 years from the date of donation.
64
Voluntary Partition
All co-owners can agree on the mode of partition, or in the absence of such an agreement, a co-owner may demand judicial partition.
An extrajudicial partition may be rescinded on account of ordinary vices of consent. Also it may be rescinded for lesion if the value of the part received by a co-owner is less by at least 1/4 of the FMV of the portion that he should have received.
65
Judicial Partition
Two Types
Partition in Kind → if the thing can be divided into lots of nearly equal value and the total value of the individual lots is not significantly lower than the value of the entire property, the court shall decree a partition in kind.
Partition by Licitation → when the thing cannot be partitioned in kind, then it is partitioned by licitation (public auction) or by private sale, and the proceeds are distributed to the co-owners.
66
Judicial Partition
Effects, Time bar
When a thing held in indivision is partitioned in kind of by licitation, a real right burdening the thing is not affected.
The action for partition is imprescriptible.
67
Predial Servitudes
Definition
A predial servitude is a charge on a servient estate for the benefit of a dominant estate.
A predial servitude is an incorporeal immovable.
68
Personal Servitudes
Definition
A personal servitude is a charge on a thing for the benefit of a person.
Personal servitudes include usufruct, habitation, and right of use.
69
How Conventional Servitudes can be Established
by juridical act, prescription, or destination of owner
70
Obligations of the Natural Drainage Servitude
The SE can't prevent the flow of water. The DE can't render the servitude more burdensome.
71
Rights/Obligations of the Estate through with Water Runs
The owner of an estate through which water runs may use it, but he cannot stop it or give it another direction.
He's bund to return the water to its ordinary channel before it leaves his estate.
72
Legal Servitudes that Impose Limitations on Ownership
(a) The owner of a building is bound to keep it in repair so that it will not fall and cause damage to a neighbor or passerby.
(b) A landowner may not build projections beyond the boundary of his estate.
(c) A landowner is bound to fix his roof so that rainwater does not fall on the ground of his neighbor.
(d) When a landowner in GF constructs a building that encroaches on an adjacent estate and the owner of that estate does not complain within a reasonable time after he knew or should have known or complains only after the construction is substnatially completed, the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building on payment of compensation for value of servitude and other damages.
73
Common Walls
(establishing)
A wall can become common immediately if a neighbor pays 1/2 of its cost.
It can become common at a later time if the neighbor pays 1/2 of its 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.
74
Common Walls
(obligations of co-owners)
The co-owners of a common wall share expenses for necessary repairs in proportion to their interests.
A co-onwer may be relieved of the obligation to pay for repairs by abandoning his right to use it in writing.
75
Common Fences
A fence on a boundary is presumed to be common.
When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.
76
Plants on the boundary line between properties
They're presumed to be common.
If a tree or other plant is on a boundary line, either landowner may remove it at his expense if the tree interferes with enjoyment of his property.
A landowner may demand that the roots and branches of a neighbor's tree or plant that extend onto and interfere with the enjoyment of his property be trimmed at the neighbor's expense.
77
Enclosed Estates
Right of Passage for Indemnity
An owner of an estate that has no access to a public road or utility may claim a right of passage over neighboring property to the nearest public road or utility.
They must indemnify their neighbor for the right of passage acquired and the damage he causes. This right is prescriptible.
This servitude is limited to the kind of traffic or utility that is reasonably necessary to use the enclosed estate.
The location of the passage is at the shortest route to a public road, where least injurious to the SE.
78
Enclosed Estates
Gratuitous Right of Passage
When, in the case of partition, or a voluntary alienation of an estate or part thereof, property alienated or partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.
79
Enclosed Estates
No Right of Passage
If an estate becomes enclosed due to a voluntary act of its owner, neither the owner nor his successors have the right to passage.
80
Conventional Servitudes
Purpose
Established on, or for the benefit of, distinct corporeal immovables.
81
Conventional Servitudes
Examples
support
view
prohibition of view
light
passage
82
Conventional Servitudes
Types
* *Affirmative →** right of way, drain, and support
* *Negative →** prohibition of building and of the use of an estaet as a commercial establishment
**Apparent** → perceivable by exterior works
**Nonapparent** → no exterior signs
83
Conventional Servitudes
Establishment
The establishment of a predial servitude by title is an alienation of a part of property to which laws applying to the alienation of immovables apply.
Conventional Predial Servitudes affecting immovable property must be in writing and recorded to affect third parties.
People who can establish one: mandataries (if they have the express and special power to do so), naked owners (as long as they don't infringe on the rights of usufructuaries), owner for a term (as long as it ceases with his rights), and co-owners (as long as they have the consent of all co-owners)
84
Conventional Servitudes
Interpretation
Doubt as to the existence, extent, or manner of exercise of a predial servitude must be resolved in favor of the SE.
85
Establishing an Apparent Conventional Servitude:
Destination of the Owner
When there exists between two estates owned by the same person a relationship that, had the estates been owned by two different people, would have resulted in the formation of a servitude, then an apparent conventional servitude is formed when the owner ceases to own both of the estates, unless there is an express provision to the contrary.
86
Establishing a Non-Apparent Conventional Servitude
Can be done by title and destination of the owner.
If done by destination of the owner, the owner must have previously filed for registry a formal declaration establishing the destination.
87
Conventional Servitudes
Rights of DE and SE
They can make all works necessary for the use and preservation of the servitude. This is done at their own expense. They can enter the SE for this purpose and deposit materials there, as long as he causes as little damage as possible and cleans up his mess as soon as possible.
If DE is divided, the servitude remains as to each part, provided that it does not become more burdensome on the SE.
The owner of the SE can do nothing to interfere with the servitude.
SE can move the servitude to an equally convenient place, and the DE must accept it, if the original position of the servitude becomes more burdensome or prevents the SE from making useful repairs.
88
Conventional Servitudes
Extinction
Destruction of DE or SE: total and permanent destruction wipe out the servitude.
Prescription of Nonuse: the servitude will be extinguished after 10 years of nonuse. Prescription starts to run on the date of creation for affirmative servitudes, and on the date of contrary act for negative servitudes.
Confusion
Abandonment by Owner of SE: this must be evidenced by a written act, and the DE is bound to accept the estate. Then, confusion takes place.
Renunciation by owner of DE: must be express and in writing
Expiration of Term
Dissolution of Right of Grantor
89
Usufruct
Generally
A real right of limited duration on the property of another.
The usufructuary has the right to use the property and enjoy its fruits, while the naked owner holds the right of abusus.
It's classified as an incorporeal, and it is movable or immovable according to the nature of the thing upon which the right exists.
90
Usufruct
Creation
Any juridical act may create a usufruct.
Legal usufructs arise by operation of law, even in the basence of any juridical act.
UFs may be created in a manner that is successive, and joint UFs are also permissible in La.
91
Usufruct
Partition
Partition can be compelled only against an individual with whom one shares the same elements of ownership.
A naked owner may not partition vis-a-vis a usufructuary, but he may partition his naked ownership with a fellow naked owner.
92
Usufruct
Rights and Duties of Usufructuary
Consumables: e.g., money, wine. UF over consumables gives the usufructuary the rights of use, fruits, and abuse of the thing subject to the UF. But at the termination of the UF, he must either pay the value of the consumable at the commencement of the UF, or replace them with things of the same quality and quantity.
Nonconsumables: e.g., houses, cars. UF over nonconsumables gives the usufructuary only use and fruits, but not abuse. He must preserve nonconsumables and act as a prudent administrator. The usufructuary must turn over the nonconsumables to the naked owner at termination of the UF.
Natural Fruits: those gathered during the UF belong to the usufructuray.
Civil Fruits: those accrued during the UF belong to the usufructuary, regardless of gathering.
93
Usufruct
Sale of thing subject to UF
The usufructuary is not permitted to sell the property subject to the UF.
Likewise, the naked owner may attempt to sell the property, but because such a sale cannot affect the UF, the effect is a sale of the NO's right to naked ownership only.
The usufructuary also may sell his interest, but not the property burdened by the UF.
If the property is sold involuntarily (e.g., mortgage foreclosure), the UF terminates unless there are excess proceeds, in which case the UF continues over the proceeds.
94
Usufruct
Right of usufructuary to make improvements
Substantial alterations or improvements to the thing burdened by the UF are not within the right of use, and therefore the usufructuary may not generally make them.
However, a usufructuary may make such improvements with the NO's written consent.
Substantial alterations or improvements are always made at the sole expense of the usufructuary, even if the NO does consent.
If the usufructuary obtains written consent, the improvements may be used as an offset against amounts owed to the NO for damage.
A usufructuary may also bypass the NO and seek judicial permission to improve the thing. In that situation, he must show that a prudent administrator would make the alterations, and the determination is wholly within the judge's discretion.
95
Usufruct
Usufructuary's right of disposition
The usufructuary may alienate, encumber, or lease his right of UF.
Anyone who takes from the usufructuary only gets rights derivative of his.
The usufructuary is liable for any damage caused by a person whose rights derive from his.
The usufructuary generally may not dispose of the property burdened by the UF.
96
Usufruct
Exceptions to the rule that the usufructuary may not dispose of the property subject to the UF
- consumables may be used
- if creator of UF gives the usufructuary the express right to dispose of nonconsumables, that will control
- usufructuary can dispose of corporeal movables that are gradually and substantially impaired by use, wear, or decay, so long as he acts as a prudent administrator → e.g., cars, appliances
97
Usufruct
Duties of the Usufructuary
Make an inventory to determine what property exists. NO can prevent usufructuary from going until possession until inventory is made.
Provide security in a conventional UF in the amount of the value of the property subject to the UF. \* Legal usufructuary generally does not have to give security.
Act as a prudent administrator, and pay damages for failure to so act.
Make and pay for all ordinary maintenance and repairs. NO can compel them to do this.
Pay annual or periodic charges and assessments, including property taxes.
98
Usufruct
Duties of the Naked Owner
They only have the right of abuse.
She may sell her right, but may not affect the UF.
She has no right of use, and may not interfere with the usufructuary's use, even to make alterations to the property.
They are also responsible for making "extraordinary repairs," which are defined as a reconstruction of the whole or a substantial party of the property.
99
Usufruct
Causes of Termination
The creator of a conventional UF may generally determine the duration of the UF, and it may hinge upon a term or condition.
If the creator provides no rule of termination, then it terminates as follows:
(a) UF in favor of a natural person → at her death
(b) UF in favor of a juridical person → at the earlier of either its dissolution or 30 years
(c) upon prescription of nonuse of 10 years
(d) upon confusion
(e) upon total destruction of the property subject to the UF
(f) upon renunciation of the right by the usufructuary
(g) for waste or abuse → this is not automatic; it must be judicially asserted and it's within the court's discretion
100
Usufruct
Real Subrogation
UF continues over some other property under the principle of real subrogation in the case of:
(a) Tort damages recovered for destruction of the thing by third party fault
(b) Insurance proceeds for destroyed property
(c) Excess proceeds after a mortgage creditor has been paid
(d) Money received for expropriation of the property
101
Usufruct
Effects of Termination
Upon termination of the UF, the usufructuary is required to turn over to the NO all nonconsumables subject to the UF.
She must further pay:
- for nonconsumables that were destroyed by the usufructuary's fault, the value the otherwise would have had at the time of termination
- for corporeal movables gradually impaired and sold for less than value, the difference between their value and the money received at disposition
- for consumables, the value they had at the time of commencement of the UF (unless the usufructuary chooses to instead hand over things of the same quality and quantity)
102
Right of Habitation
This is a real right to live in the house of another.
It may be granted only in favor of a natural person, and is nontransferrable, though the benefit extends to family members of the holder of the right.
The holder of the right has a duty to act as a prudent administrator.
103
Right of Use
Imposes a charge on land for another's benefit, similar to a predial servitude.
The right may be granted in favor of either a natural or juridical person.
The doctrine of prescription of nonuse applies, in the same manner of predial servitudes.
104
Distinctions between Right of Use and Predial Servitudes
The real right in a right of use benefits a person, rather than a DE as in a predial servitude.
The right of use is transferrable, separate from the land.
105
Building Restrictions
Definition
Building restrictions create real rights, and are property arrangements that impose charges on property.
Example: requirement of all homes in a subdivision to have a two car garage.
106
Building Restrictions
Enforceability & Reciprocity
BRs are enforceable against all lots, even if created by a developer. They may bind lot owners that did not specifically agree to them in a juridical act.
BRs are for the mutual benefit of everyone who owns a lot, and reciprocity is an inherent quality.
They impose a charge on an area, and every lot is bound.
107
Building Restrictions
Compare with Zoning Ordinances and Predial Servitudes
Zoning ordinances can create similar restrictions, but they are public, rather than private law. BRs can require more than zoning ordinances would require of lot owners, but not less.
BRs are very similar in appearance to predial servitudes, and are governed by many of the same rules. BUT, BRs can impose affirmative duties on lot owners bound by them.
108
Building Restrictions
Manner of Creation
Two ways they can be created:
(1) By the owner of the immovable, usu. a developer → she creates the restrictions before she sells lots and files those restrictions in the public records. The restrictions then become enforceable against all lots sold.
(2) By agreement of the owners of the affected lots → unanimity is required.
109
Building Restrictions
Amendment and Termination by Agreement
If the BR provides for rules of modification and termination, those will govern.
In the absence of any such applicable rules, the Code provides that if they've been in existence for:
- 15 years → can be terminated with agreement of at least 1/2 the affected owners
- less than 15 years but at least 10 years → can be terminated wiht agreement of at least 2/3 of the affected owners
- less than 10 years → can only be terminated with unanimity
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Building Restrictions
Abandonment
An entire subdivision may be freed from BRs if they are abandoned, which requires a significant number of violations to have occurred and not been contested.
The failure must be pretty widespread to amount to abandonment, but there is no bright-line rule on the required percentage of violation.
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Building Restrictions
Ambiguity
Any doubt as to or ambiguity in the BRs is to be resolved in favor of unrestricted ownership.
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Building Restrictions
Enforcement
Any lot owner may sue for an injunction compelling other lot owners to comply with the BRs.
If there is a homeowner's association, it may also sue to enforce the BRs.
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Building Restrictions
Louisiana Homeowners' Association Act
The Act applies to any "residential planned community," which is defined as a residential community in which membership in a homeowners' association is required.
Under this Act:
- BRs may be established wiht the agreement of only 3/4 of lot owners
- Modifications that make restrictions more onerous for lot owners require 2/3 of the lot owners to agree
- Modifications that make restrictions less onerous for lot owners require only 1/2 of the lot owners to agree
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Possession
Establishment of
You need to have both corpus and animus to have possession.
Corpus: physical acts of use, detention, and enjoyment → analyze the quality and frequency of such activities to determine if the requisite corpus exists
Animus: the intent to possess as owner → there's a legal presumption of animus that is rebuttable
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Possession
Precarious Possession
A precarious possessor is not a possessor at all, because he is on the property with the permission of or on behalf of the owner, and therefore lacks animus.
Precarious possessors are presumed to be possessing on behalf of the persons they started possessing for.
Precarious possession can be terminated by giving actual notice.
For co-owners, it can be terminated by engaging in overt and unambiguous acts sufficient to give notice that co-ownership/precarious possession is terminating.
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Possession
Fictions of Possession
Civil possession → the retention of possession when a possessor voluntarily relinquishes corpus, but retains animus.
Constructive possession → deems the possessor to possess everything within the bounds of his title; requires corporeal possession of at least a part of the property AND a title.
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Possession
Loss of Possession
Abandonment will give rise to loss of possession.
Requirements: the loss of both corpus and animus.
Eviction also gives rise to a loss of possession.
Requirements: possessor must be physically ousted from his property OR another person engages in acts on the property that are strong enough to put the possessor on notice that his dominion is seriously being challenged.
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Possession
Conflicting Possessions
Two people can't corporeally possess the same thing at the same time. A person who has possession keeps it until he's evicted.
Corporeal possession trumps all other forms of possession.
Civil possession trumps constructive possession.
When there are overlapping constructive possessions, the earlier established constructive possession prevails.
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Occupancy
Definition and Effect
Occupancy is the taking of possession of a corporeal movable that belongs to no one.
If all three of those elements are met, the possessor immediately becomes owner of the thing on taking possession.
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Occupancy
Contrast with Lost Things and Treasure
Occupancy lets you become owner of the thing immediately upon taking possession of a corporeal movable that belongs to no one.
For lost things, you can only become the owner after making a diligent effort to find the real owner for three years.
For treasure, you only become the owner of a movable thing hidden in another thing for so long that the true owner can't be determined. But you become owner immediately here, just like occupancy.
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Acquisitive Prescription of Immovables in GF
Requirements of Proof
Need to prove:
1. Thing susceptible of acquisition by prescription (excludes any property owned by the state)
2. Possession for 10 years
3. Good Faith
4. Just title
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Acquisitive Prescription of Immovables in GF
Definition and Effect of GF
GF means you reasonably believe, in light of objective considerations, that you own the property you possess.
It's both a subjective and objective standard.
GF is presumed.
Title examinations are not required for GF
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Acquisitive Prescription of Immovables in GF
Effect of Subsequent BF
Possession must only commence in GF.
Subsequent BF does not stop the 10 year prescriptive period from accruing.
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Acquisitive Prescription of Immovables in GF
Definition of Just Title
There's just title if a document on its face purports to transfer the property possessed, has a property description, is in proper form, is written, and is recorded.
Just title does not mean valid title.
A just title must simply appear valid on its face, even if it is not a valid transfer of title.
Quitclaim deeds and titles by sellers who did not own or did not have authority to sell may be just title.
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Acquisitive Prescription of Immovables in GF
Tacking of Possession
Successors can add their ancestor's possession to their own to make out the requisite period of years for acquisitive prescription.
Tacking requires a juridical link.
Both the ancestor and the successor must meet all of the requirements of the type of tacking they're trying to achieve (e.g., if trying to achieve GF acquisitive prescription, both successor and ancestor must be in GF)
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Acquisitive Prescription of Immovables in GF
Boundary Tacking
This may apply when a person possesses land adjacent to land to which he has title, up to visible boundaries, even if there's no title to the adjacent land.
You can tack ancestor's possessory period to yours for this.
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Acquisitive Prescription of Immovables in BF
What you need to prove
1. A thing susceptible of acquisitive prescription
2. Possession for 30 years
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Acquisitive Prescription of Movables in BF
What you need to prove
1. A thing susceptible of acquisition by prescription
2. Possession for 10 years
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Acquisitive Prescription of Movables in GF
What you need to prove
1. A thing susceptible of acquisition by prescription
2. Possession for 3 years
3. Good faith
4. An act translative of title
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Boundary Actions
Definition
A boundary action is a suit to ask the court to fix a boundary between contiguous properties.
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Boundary Actions
Prescriptive Period
The right to assert such an action is imprescriptible.
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Property Conflict of Laws
Immovables situated in La are generally governed by La law, even if the case has strong connections to another state.
Immovables situated in other states are generally governed by the law of the situs.
Movables are generally governed by the law of the state in which the movable was situated when acquired.
