Topic 14 Flashcards
Louisiana Civil Code (222 cards)
1
Q
Perhaps the greatest difference between the two systems is that the Common Law system relies on precedents set by decisions in earlier cases as the basis for deciding the outcome of current cases. This practice is known as the principle of ____
A
stare decisis
2
Q
The Civil Law system relies on a comprehensive code of laws to decide al cases.
A
The LA Civil code
3
Q
may be animate or inanimate, but they can be seen, felt or touched, such as land or buildings
A
corporeal things
4
Q
may be understood or comprehended by the mind or thinking.
A
Incorporeal things
Ex. Rights
5
Q
owned by individuals, other private entities such as corporations, limited liability companies, limited liability partnerships, or by the state or the gov’t
A
private things
6
Q
may not be owned by anyone. These include the air and the high seas.
A
common things
7
Q
those things owned by the state or the local government.
A
public things
Ex. Running water, navigable waters, seashore, streets, and parks
8
Q
In Louisiana real property is divided into two categories:
A
movable and immovables
9
Q
consist of land, and its component parts such as buildings, timber, and unharvested fruits and crops when they belong to the owner of the land.
A
immovables
10
Q
include buildings and standing timber when they belong to a person other than the owner of the ground.
A
separate immovables
Only buildings and standing timber may be separate immovables.
11
Q
include unharvested fruits and crops when they belong to a person other than the owner of the land.
A
movables by anticipation
12
Q
All rights and actions that apply to immovables are classified as ______
A
incorporeal immovables
Ex. Right of ownership, predial servitudes, personal servitudes, mineral servitudes, royalties, and mineral leases
13
Q
things, whether animate or inanimate, that move or can be moved from one place to another.
A
corporeal movables
Ex. building materials for the construction of a new building
14
Q
Examples of incorporeal movables…
A
Rights, obligations, actions that apply to a movable, stocks ,bonds, and annuities
15
Q
includes things attached or incorporated into a building or other construction. They become component parts of the structure. This includes building materials. Once incorporated into an immovable, the thing becomes an immovable.
A
component by incorporation
16
Q
Things are considered permanently attached to a building or other construction if they cannot be removed without substantial damage to themselves or damage to the immovable to which they are attached. Things that are considered permanently attached to a building include such things as plumbing, heating, cooling, electrical, or other installations. Accordingly, they constitute component parts of the building or construction.
A
component by attachment
17
Q
Things that would otherwise be classified as immovable may be classified as movable. The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration must be filed for registry in the conveyance records of the parish in which the immovable is located. If the declaration is not so filed, the machinery, appliances, and equipment remain classified as movables.
A
component by declaration and registry
18
Q
In order for a _____ to be considered an immovable, a declaration stating that it will remain permanently attached to the land must be filed in the public records of the parish in which the land is located. The wheels must be removed, the tongue cut off, and it must be tied down.
A
mobile home
19
Q
A manufactured home may be deimmobilized by detachment or removal. But, to affect third persons, an authentic act of sale or mortgage or sale with mortgage must be filed in the appropriate mortgage and/or conveyance records.
A
detachment sale
20
Q
a French unit of measure about equal to 5/6 of an acre. It is also used as a linear measure about equal to 192 feet.
A
arpent
21
Q
In Louisiana, there are two principal meridians, the 91st West of the Mississippi River, called the______, and the 90th East of the Mississippi River, called the _____. There is one base line which transects the State of Louisiana at its center.
A
Louisiana Meridian
St. Helena Meridian
22
Q
the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law.
A
ownership
23
Q
Louisiana law divides ownership into three categories:
A
- ) Usus
- ) Fructus
- ) Abusus
24
Q
The right to use a thing, and to exclude other from using it.
A
usus
25
The owner of a thing owns the fruits produced by the thing that come from exploiting and enjoying the thing, such as rents and royalties and natural fruits such as crops and timber.
fructus
26
he right to alienate or dispose of the thing. It includes consuming it, giving it away, selling it, and encumbering it by mortgage or pledge.
abusus
27
A person who owns both the usus and the fructus owns the _____
usufruct
28
The owner of the remaining right, the abusus, is called the ____
naked owner
29
a charge on a thing
servitude
30
There are two kinds of servitudes:
personal servitudes and predial servitudes
31
a charge on a thing in favor of a person.
personal servitudes
*can be compared to the Common Law easement in gross.
32
There are 3 types of personal servitudes:
1. ) usufruct
2. ) habitation
3. ) right of use
33
a real right of limited duration on the property of another. It is similar and may be compared to a "life estate" in the common law, but it is not identical.
usufruct
34
The owner of the usufruct is _____. Has the right to the use and the fruits of the property for a limited period of time, usually for life.
usufructuary
35
If a thing cannot be used without being consumed or expended or its substance changed, such as money, food, beverage, it is a _____, and the usufructuary becomes the owner of the thing.
consumable
36
Things that can be enjoyed without altering their substance, such as land, houses, or livestock, are _____. The usufructuary does not have the right to dispose of these, unless that express right was granted to him.
nonconsumables
37
is one that is created by an act.
Conventional Usufruct
38
one that is created by operation of law.
Legal Usufruct
39
Usufruct will terminate...
1. ) death of the usufructuary
| 2. ) if the usufruct is held by a legal entity which ceases to exist
40
The usufructuary may lease, alienate ,or encumber his right. This is called ____
disposition
41
a nontransferable real right of a natural person to dwell in the house of another. It may be established in the same manner as a usufruct. It terminates with the term provided or death of the person having it.
habitation
42
a personal servitude that confers in favor of another person a specified use of an estate less than full enjoyment. transferable and may be inherited, unless prohibited by law or contract.
right of use
Ex. a hunting license
43
a charge on a servient estate for the benefit of a dominant estate and is similar to easement appurtenant under the common law. The dominant estate is the one benefiting from the servitude. The servient estate is the one who gives the servitude. The two estates (land, usually) must belong to different owners and must be located in such a position that one benefits or it may be reasonably expected to benefit from the charge placed on the other. can only be terminated by the dominant estate, that is the landowner needing access. It is inseparable from the dominant estate and passes with it. The right cannot be sold or encumbered separate from the dominant estate. If the servient estate is sold, the servitude continues ever after the sale.
predial servitude
Ex. when one landowner obtains access across the property of the adjoining landowner to reach a public road or a water source.
44
Predial servitudes may be:
1. ) natural
2. ) legal
3. ) voluntary or conventional.
45
A property which lies at a lower elevation will naturally receive surface waters flowing from an adjoining property which is at a higher elevation. This running water may be used, but not stopped, nor diverted.
natural servitudes
46
limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. An owner of a building must keep his building in repair so that neither it nor its materials will fall on or damage a neighbor or passerby. The owner of a building near a wall, whether or not a common or party wall, must protect his neighbor against injury. Neither projections over boundaries nor water falling from a roof onto ground of a neighbor are allowed. An owner of property may do with his estate whatever he pleases; however, this right is limited by his responsibility to not damage a neighbor.
legal servitudes
47
one which rests half on one property and half on an adjoining property. The first person to build a wall may build half of the wall on a neighbor's land, if the first story is constructed of masonry not over eighteen inches in width and three inches of plaster. To become a common wall, the neighboring landowner must pay one-half (1/2) its current value.
party walls
48
An owner without access to a public road may claim a right of passage to the nearest public road; however, he must pay for the damage occasioned as a result. The owner of it may construct the type of road necessary, along the shortest route, generally at a location least injurious to intervening lands.
enclosed estate
49
A predial servitude may be created by contract, that is by agreement of the parties.
conventional servitudes (voluntary)
Ex. rights of passage, projection, view, etc.
50
A servitude may be acquired by ____, that is by peaceable and uninterrupted possession of the right for ten (10) years in good faith and with just title or by uninterrupted possession for thirty (30) years without good faith or just title. A predial servitude may be lost by nonuse for ten (10) years.
acquisitive prescription
51
When the same person acquires both the dominant the servient estates, the predial servitude ceases to exist. The term for this is ____ which is similar to the common law term "merger."
confusion
52
If no termination date or other provision appears in the act creating the restrictions, building restrictions may be terminated or amended as follows:
1. After the restrictions have been in effect for fifteen (15) years, the agreement of owners representing more than one-half the land area (excluding streets and rights-of-ways); or
2. By the agreement of both (a) owners representing two-thirds (2/3) of the land area, and (b) two-thirds (2/3) of the owners of the land (excluding streets and right-of-ways) affected by the restriction after the restrictions have been in effect for ten (10) years.
3. By abandonment of the whole plan or by the general abandonment of a particular restriction. If a particular restriction is abandoned, the affected area is freed of that restriction only.
53
If a ____ is sold at the sheriff’s sale, the homeowner is assured that his homestead will sell for more than $25,000.00 and that the owner may retain or receive the first $25,000.00. The right to a homestead may be waived.
homestead
This is not to be confused with the $7500 homestead exemption for property taxes.
54
In any ____, the act itself will invariably contain a clause in which homestead rights are waived. However, both spouses must sign if there is a waiver. By operation of law, the homestead exemption is waived, if the mortgagor is single.
Voluntary Act of Mortgage
55
ownership by two or more persons, each having an undivided share, often called an undivided interest. The share or interest can be in any proportion, equal or unequal, as stated in the contract and may be acquired at different times and by different methods. Each owner may exercise all rights of ownership of his undivided interest, subject to legal and conventional limitations, without consent or knowledge of his co-owners.
co-ownership (undivided interest)
56
a system of principles and rules governing the ownership and management of the property of married person or between themselves and toward third persons. may be established by law or by contract, or a combination.
Community Property (Matrimonial Regime)
57
The spouses, before marriage if residents of Louisiana or within one year after acquiring a domicile in this state, may enter into a ____, without court approval, modifying or rejecting the legal matrimonial regime. Without such an agreement, a legal matrimonial regime exists in accordance with law, regardless of domicile at the time of or the place of the celebration of their marriage. Must be made by authentic act or act under private signature. It is effective against third parties as to immovable property when filed in the conveyance records of the parish where the immovable property is situated.
matrimonial agreement or contract
58
If there is no matrimonial agreement to the contrary, then any property acquired during the marriage is considered to be ___. Each spouse owns an undivided one-half interest in the property. Neither spouse may sell, encumber, or lease any immovable community property to a third person without the agreement of the other spouse. Anything in the possession of a spouse during the existence of the community is presumed to be community property, and anything acquired during the marriage through the effort, skill or industry of either spouse is community property.
community property
59
The _____, unless specifically reserved as separate property by the spouse are also community property. In order to reserve it as separate property, a declaration must by made by affidavit and recorded in the parish where the separate property is located. There must be no commingling of the fruits with community property, that is funds must be in a separate bank account.
fruits and revenues of separate property
60
consists of property acquired prior to the marriage, inherited by a spouse, donated to a spouse individually, things bought with separate funds, etc., including things acquired by partition of the community.
Because of the presumptions and possible challenges to the ownership of property, both spouses should sign all documents
separate property
61
In Louisiana, a limited partnership is often called a ____. a legal entity distinct from its partners. Immovable property acquired in the name of the partnership is owned by the partnership, if at the time of the acquisition, the partnership agreement is in writing. If the partnership agreement was not in writing, the partners own the immovable individually. The partnership must be recorded with the Secretary of State in order to be effective against third parties.
partnership in commendam.
62
may own and dispose of immovables, unless the articles provide otherwise.
Louisiana corporations and limited liability companies
63
sets forth numerous provisions affecting the acquisition, ownership, alienation, and management of property which forms part of a condominium.
The Louisiana Condominium Act
64
It is widely understood that the owner of a unit in a ___ project owns the land under the structure
townhouse
65
in a ____ the land is a common element and the owner only owns an undivided interest
condominium
66
In LA, ownership of the condo...
Ownership can only be determined by referring to the condominium declaration establishing the condominium regime.
67
Property may be transferred by ...
sale, donation, succession, accession, prescription, and other operations of law.
68
A person may dispose of or receive property by a ___
donation.
69
Donations take effect in two forms, namely...
donations inter vivos and
| donations mortis causa
70
donations between living persons. a gift from one person to another.
donations inter vivos
71
Three types of donations inter vivos...
1. ) gratuitous
2. ) onerous
3. ) remunerative
72
donation is a gift made without condition.
gratuitous donation
73
donation is burdened with charges imposed upon the donee, or person receiving the donation.
onerous donation
74
made to repay the donee for services rendered. If the value of the donated thing must be substantially greater than the amount of the remuneration, or it would be a sale rather than a donation.
remunerative donation
75
The donor of immovable property may ___ the usufruct to himself.
reserve
76
he may stipulate the ___ of the object given should he survive the donee.
right of return
77
A donor may ___ a donation for several reasons, including ingratitude by the donee, non-fulfillment or non-performance of conditions, or conventional return. A donation in the chain of title, then, is a potential title problem.
revoke
78
another name for a will. an act by which an individual disposes of his property with the actual donation to take effect upon the death of the donor. The act is usually called a last will and testament, but requires the same formalities as other donations. There are several kinds of wills, each having certain requirments.
Donation Mortis Causa
79
Effective July 1, 1999, Louisiana will recognize only two forms of testaments...
olographic and notarial wills
80
one which is written dated, and signed by the testator or testatrix in his or her own handwriting.
Olographic will
81
is one which is written, usually typed, and signed by the testator in the presence of a notary and two witnesses. It is similar to what was previously known as the statutory will.
Notarial will
82
the acquisition of the willed property, or succession by the legal heir or the testamentary heir, and it occurs immediately upon death, even if the heir does not know of the death.
Seizin
83
is the process of transmission of the estate of a decedent to his successors. It also refers to the specific legal proceeding filed to recognize successors and place them in possession.
Succession
84
There are two types of successions:
testate and intestate.
85
occurs when there is a will.
Testate succession
86
occurs when there is no will.
Intestate succession
87
are testate successors , (those named in a will to inherit).
Legatees
88
are intestate successors, (those who inherit when there is no will.
heirs
89
means the property, rights, and obligations that a person leaves after his death and all that have accrued since his death.
Estate of a decedent
90
The children of the decedent (deceased) must inherit ____
the forced portion, at least.
91
If there is no will, the children inherit the full estate of the deceased person, and the spouse retains ____
usufruct
The spouse may be given usufruct in the will.
92
If there are no descendants and no will,...
the spouse inherits the decedent’s share of the community property.
93
If there are no descendants, ...
the decedent may will his share to whomever he wishes.
94
that portion of the property of the decedent that his forced heirs must receive upon his death.
Forced Portion, or Legitime
95
The balance of the decedent's estate is called...
the disposable portion.
96
The disposable portion is...
three-fourths (3/4) if the decedent leaves one (1) forced heir at his death and one-half (1/2 ) if the decedent leaves two (2) or more forced heirs.
97
Forced heirs are the children of the decedent who at the time of the death of the decedent are:
1. Twenty-three (23) years of age or younger ( or under 24); or
2. Any age, but because of some mental incapacity or physical infirmity are permanently incapable of taking care of their persons or managing their property;
98
When the deceased person’s child has predeceased him, the descendants of the predeceased child are also forced heirs, if:
1) The decedent's child would have been twenty-three (23) years of age or younger at the time of decedent's death
2) The decedent's child was permanently incapable of taking care of his person or managing his property, regardless of his age at the time of the decedent's death.
99
The ownership of a thing includes, by ___, the ownership of everything that it produces or is united with it, naturally or artificially.
accession
100
transfer with the land unless stated in the contract. However, if they are retained by contract, they may only be retained for ten years if there is no activity.
mineral rights
101
If buildings or other constructions are made on the property of the owner without his consent, such items belong to ...
the owner of the land.
102
If a ____ makes constructions, plantings, or works, he may recover the cost of materials and the workmanship, their current value, or the enhanced value of the immovable. The possessor may not be forced to demolish or remove the improvements.
good faith possessor
103
If a ____ makes the improvements, the owner of the immovable may:
(1) keep them or
(2) demand their demolition and removal at the possessor's expense and
(3) recover damages. If he keeps the improvements, he must pay the possessor the current value of the materials and the workmanship or the enhanced value of the immovable.
bad faith possessor
104
the natural build up of soil along the bank of a river or stream, whether navigable or not. The alluvion belongs to the owner of the bank, subject to public use.
alluvion
There is no right of alluvion on the shore of the sea or lakes.
105
formed by water receding from a river or stream. The owner of the land situated at the edge of the bank left dry owns it.
the dereliction
There is no right of dereliction on the shore of the sea or lakes.
106
When the ____ carries away an identifiable piece of ground and unites it with other land on the same or opposite bank, the owner does not lose the property, if he claims it in writing within a year, or if over a year, he may claim the land if another owner has not taken possession.
sudden action of water
This is called avulsion in the Common Law states.
107
If a ____ abandons its bed and opens a new one, the owner of the land on which the new bed is located takes ownership of the abandoned bed (proportionate to the land he lost). If the river returns to its old bed, the owner takes ownership of his former land.
navigable river or stream
108
__ that are not attached to the bank, formed in the beds of navigable rivers or streams belong to the state.
Islands and sandbars
109
The ____ on a non-navigable river or stream owns to the middle of the bed (in the absence of title or prescription).
riparian owner
110
the right or power of the government to take private property for public use upon paying just compensation.
eminent domain
111
is the Common Law term describing the use of the power or right of eminent domain.
condemnation
112
LA uses two terms for eminent domain:
(1) expropriation
| (2) appropriation
113
the authorized judicial taking of private ownership rights upon payment of just compensation. It is a synonym for “taking”. the action which is authorized by the right of eminent domain.
expropriation
114
must be made to the owner of the property being taken.
compensation
While many consider fair market value to be the measure, just compensation also includes all loss suffered by the owner.
115
the unauthorized use by the government to deprive an owner of his property without conforming to law. also used to describe an exercise of public property rights, without paying compensation, pursuant to the inherent police powers of a government, recognized by the courts as valid.
appropriation
116
the exercise of physical acts of use or enjoyment.
Corporeal possession
117
When a person possesses part of an immovable, he is deemed to have ____ of the entirety of the property within the limits of his title. In the absence of a title, a person possesses only the area in which he exercises actual physical possession.
constructive possession
118
Ownership of immovable property may be acquired by possession for a period of time called ____
acquisitive prescription
adverse possession in the Common Law states
119
The prescriptive period for Good Faith possession is ___
ten years
120
Ownership may be acquired after possession for ___ if it was continuous, uninterrupted, peaceable, public, and unequivocal and in good faith at the time possession commenced.
ten years
121
___ means the possessor believed it was his land.
Good faith
122
Bad Faith possession is ____
thirty years
Requirements for possession in bad faith include possession are the same as for good faith except that the person claiming ownership does not believe that the land is his. Neither good faith, nor just title, is required. This prescription is analogous to the common law concept of squatters' rights or title by adverse possession, although these are not Louisiana terms.
123
a legal relationship whereby a person (called the obligor) is bound to render a performance in favor of another person (called the obligee).
obligation
124
the person bound by the obligation.
obligor
125
the person for whom the obligation is performed.
obligee
126
an agreement by two or more parties whereby obligations are created, modified, or extinguished.
contract
127
An obligation is ____ for the obligees when it gives each the right to demand the whole performance from the obligor. It is ____ for the obligors when each obligor is liable for the whole performance.
solidary
128
the extinguishment of an existing obligation by the substitution of a new one. Common law jurisdictions define novation to be a substitution of parties, thereby releasing the original parties.
novation
129
An obligation is extinguished by ____ where the obligor and obligee are united in the same person.
confusion
130
one in which only one party is obligated.
unilateral contract
131
one in which both of the parties are obligated.
Bilateral or synallagmatic contract
132
when each party obtains an advantage in exchange for his obligation.
Onerous contract
133
one in which one party is obligated for the benefit of the other, but receives no advantage in return.
Gratuitous contract
134
If the offer specifies a time for acceptance, it is ____ during that time. If no time is specified then the offer is ___ for a reasonable time. This type of offer, if not accepted, will expire only after expiration of the time set or after a reasonable time.
irrevocable
135
a contract whereby both parties agree that the offeror (usually a seller or lessor) is bound for a specified time and that the offeree (usually a buyer or lessee) may accept within that time. The buyer customarily purchases the right, or option, to accept or reject a promise to sell within the stipulated time, and upon acceptance by the buyer, either party may enforce specific performance. A unilateral contract.
option contract
136
An acceptance not in accord with the terms of the offer. Essentially a new offer and constitutes a rejection of the first offer.
counteroffer
137
In Louisiana, an obligation cannot exist without a lawful _____. The reason why a party obligates himself.
cause
Consideration is not mentioned or defined in the cause, which is not to say the term "consideration" is not used because it is. However, if cause is not present, there is no contract. This is true even if money is exchanged, a sales price exists, or the contract states the consideration.
138
A contract is ____ when all the necessary requirements are not met.
null
139
If the contract violates a rule of public order, it is ___ and cannot be carried out.
absolutely null
The term “absolutely null” is similar to the Common Law term “void”
140
Contracts which have an illegal object are ____.
absolutely null
The term “absolutely null” is similar to the Common Law term “void”
141
If a contract is flawed, but not illegal, it is ____, but may still be carried out.
relatively null
the term “relatively null” is similar to the Common Law term “voidable”.
142
In Louisiana, if a deposit is not designated as “earnest money” then it is considered to be a _____
specific performance deposit.
143
Considered to be liquidated damages. Either party is at liberty to withdraw from the contract. The party who gave it must forfeit it to the other if he withdraws from the contract. If the one who withdraws is the one who received it, he must return double its amount to the other. Neither party can sue for specific performance or other damages.
earnest money
144
To perfect a sale, there are three requirements:
(1) the thing sold
(2) the price
(3) the consent of the parties.
145
All transfers of immovables must be in writing, as in other states. However, a verbal sale is good against a party if
(1) the immovable has been actually delivered and
(2) he confesses it when interrogated under oath.
However, Louisiana License Law states that all real estate sales contracts must be in writing.
146
one executed and signed by each party and two witnesses before a notary public. The party may affix his mark, if he does not know how to sign. If a party is blind, there must be three witnesses. It is full proof of the agreement against the parties.
authentic act
147
ne signed by the parties. It is full proof against a party only if it is acknowledged. There are several ways to acknowledge an act under private signature. One such way is for the party to appear before a notary public in the presence of two witnesses and recognize that the signature on the document belongs to him. Without full proof, a signature must be proved in court before it can be admitted into evidence.
act under private signature
148
The document itself transfers title from the seller to the buyer, however, to be effective against third persons it must be recorded in the public records of the parish where the immovable is located. Without such registry, the sale is null as to third parties.
Effective Transfer
149
he sales instrument transferring title is called ____ The word "deed," although often used in some parts of the state, is a common law term. It does not appear in the civil code.
a contract of sale, a sale or a conveyance.
150
A sale of immovable property may be rescinded for lesion, if the price was below a certain point. If the price of the immovable was less than half the value the property had at the time of the sale, the sale may be rescinded for ___. If the buyer has already sold the property to a third person, the sale cannot be rescinded. However, the seller may recover from the buyer whatever profit the buyer realized from the sale to the third person.
lesion beyond moiety.
The time period in which to file for lesion beyond moiety is one year.
151
the avoidance of a sale on account of some defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the defect. If the buyer knew of the defects, if they were apparent or could have been discovered by reasonable inspection, or if they were declared to him before or at the time of the sale, then redhibition is not available.
Redhibition
152
The buyer must bring his action in redhibition against a seller who did not know of the defect within _____ from the date of delivery or within ____ of the date of his discovery of the defect, whichever occurs first. The buyer may demand reduction of price, instead of rescission, or the judge may decree it. The name of this legal action is guano minoris.
one (1) year
153
If the seller commits ___ by affirmatively declaring a quality that does not exist, damages and attorney's fees may be recovered.
fraud
154
Although warranty is by law and need not be set forth in any agreement, it may be limited by agreement in the conveyance. Even so, the buyer may be entitled to return of the purchase price, unless he expressly assumes the risk.
limiting warranty
155
Although the code does not provide for a quitclaim, it is customarily used to clear up clouds on title by releasing any possible right or interest in the property by the grantor. A quitclaim is not a warranty of ownership but rather a statement that the grantor does not claiming ownership.
quitclaim warranty
156
a remedy of the seller for non-payment of the purchase price. This is a remedy in addition to and not dependent on a mortgage that may have been retained as security for the payment.
dissolution of sale
157
A seller may reserve the right to redeem the immovable property by returning the price. This right may not be reserved for more than ten (10) years.
right of redemption
158
the licensee named by the broker as the agent of the client.
designated agent
159
The agency relationship between a broker and the person for whom he is working is not determined by
the payment of or promise to pay compensation.
160
xists when the Licensee works for both the buyer and the seller in the same transaction. Must have consent of both parties
dual agency
161
can only be created by a written agreement. A licensee is not a subagent of a client or another broker solely because of the affiliation of the broker with a multiple listing or other information service. The licensee should exercise great caution, however. There may be a situation in which the licensing law is not applicable. Furthermore, the articles on mandate apply in many instances in the practice of the licensee, particularly when a power of attorney is involved. The laws of agency studied in other jurisdictions do not materially differ, and the licensee should be familiar with them.
subagency
162
an act in which one person gives power to another to transact for him and in his name in one or several affairs. This does not include the usual listing agreement between the owner and a licensee.
A mandate, procuration, or a letter of attorney
163
A mandate. It may be in writing, by public act, or by private act, even by letter.
power of attorney
164
A power of attorney terminates when...
1. ) revoked
2. ) the agent resigns or renounces
3. ) death of either principal or agent
4. ) bankruptcy of either
5. ) interdiction of the agent
6. ) qualifications of the curator after interdiction of the principal
7. ) occurrence of a resolutory condition stipulated
8. ) when the purpose has been accomplished or becomes impossible.
165
the right which the nature of the debt gives to a creditor and which entitles him to be preferred before other creditors, possibly even over those who have mortgages
privilege
The words privilege and lien are used interchangeably.
166
The licensee most often comes in contact with two privileges...
the vendor's privilege and the labor or mechanic lien.
167
granted to a seller for the unpaid sales price.
Vendor's lien
168
The privilege granted to workmen and laborers is called by such names as labor liens, materialman's lien or privilege, workman's privilege, etc. The privilege may be filed within sixty days after the last work done on the project, regardless of when the work was done or materials furnished by the one claiming the privilege. usually have priority over other prior recorded liens, except for tax liens.
Mechanic’s liens
169
a type of pledge of immovable property to secure a debt, but the debtor (mortgagor) retains possession. The creditor (mortgagee) has the power of having the property seized and sold in default of payment or other conditions set forth in the act of mortgage.
mortgage
170
a contract. The parties may agree to whatever terms they desire within limits of the law. The mortgagor (borrower/owner) may even limit his liability to the loss of the property so that he incurs no personal liability. If the buyer successfully limits his personal liability, his liability is known as in rem liability.
conventional mortgage
171
one stipulated by law, such as a mortgage against the property of a tutor or curator as security for his administration of the property. It affects all after-acquired immovables, unless it is by law limited to specific property.
A legal (tacit) mortgage
172
result from a recorded monetary judgment against a debtor. It affects all non-exempt property of the judgment debtor, including after-acquired immovables. Many buyers, with judgments or legal mortgages affecting them, do not realize that these mortgages will affect immovables they later acquire, in turn affecting their plans to refinance or resell. A title examiner will normally order a mortgage certificate in the buyer's name, as well as in the name of the seller, in order to determine the existence of such encumbrances both before and after acquisition by a buyer.
Judicial mortgages
173
In order to give notice to third parties all mortgages must be recorded in the public records in the parish where the immovable is located.
The notary public has the duty of causing the mortgage to be recorded without delay, unless the parties expressly agree in writing otherwise.
Recordation of Mortgages
174
The mortgage should be an authentic act, preferably, or one under private signature duly acknowledged. The notary public signs his name on the note or other obligation secured, including the date, and identifies the security instrument. He will also write "Ne Varietur", indicating the note is without change and is the same one described in the Act of Mortgage passed before the Notary.
Paraph
175
Generally, mortgages take effect and priority in the chronological order in which they are recorded. The collateral mortgage is often an exception, depending on when funds are advanced on the hand note. Also, some privileges, such as vendor's privilege and a workman's privilege, may take precedence over a previously recorded mortgage. Liens for unpaid property taxes take precedence over all mortgages and other privileges.
priority of liens
176
The ____ of the mortgage, or of the obligations of the note secured by the mortgage, makes the buyer solidarily liable with the original mortgagor. Only if a specific release is obtained, or by passage of time under a F.H.A. insured loan, is the original mortgagor released from liability.
assumption
177
Assuming the obligations of a note which contains a "due on sale" clause, without complying with its requirements, may ___, even if the due on sale clause does not appear in the mortgage.
accelerate the maturity of the note
178
Buying ___ a mortgage, instead of assuming the obligations of the note, leaves the original mortgagor liable, but makes the obligation an in rem one for the buyer, in that he is not personally liable. This will not prevent the mortgagee from foreclosing, however.
subject to
179
It is possible that buying an immovable hypothecated to a Savings and Loan Association may make the buyer personally liable on the note, whether the conveyance reads "assume" or "subject to."
Caveat
180
To pledge as collateral while retaining the thing pledged.
Hypothecate
181
Upon default, the property is sold at the Sheriff's sale and proceeds, up to the amount of the debt, go to the lender.
mortgage foreclosure
182
Louisiana permits this type of foreclosure. If the property does not sell for the full amount owed, the creditor may obtain a deficiency judgment for the amount owed by the borrower above the proceed's of the Sheriff's sale. The debtor has the right to bid for the property only if the bid equals at least two-thirds of the appraised value.
sale with appraisement
183
If no appraisal has been made, the lender forfeits the right to obtain a deficiency judgment.
sale without appraisement
184
Under this process the borrower, "sells" the property to the lender in return for the lender canceling the note. The lender does not retain the right of a deficiency judgment if the property sells for less than the borrower owed.
Deed in Lieu of Foreclosure or friendly foreclosure
In LA, called dation en paiement.
185
A mortgagee may foreclose by filing suit in a manner similar to filing other ___. If a judgment is rendered for the amount of the note, plus costs, interest and fees and recognizes that the payment is secured by a mortgage affecting property, when the judgment becomes final, the judgment can be executed by having the sheriff seize and sell the property at public auction. It must be appraised and should sell for two-thirds the appraised value.
ordinary lawsuits
186
the fastest way to foreclose
Executory Process/Importing confession of judgment
187
Generally, to utilize executory process for the enforcement of a mortgage, several procedures must be followed:
1. The act of mortgage must be by authentic act;
2. The note must be properly described and paraphed by the notary
3. The mortgage must contain proper clauses in which the mortgagor confessed judgment, waived benefit of appraisement, possibly waived certain notices and delays, and consented to foreclosure by Executory Process.
No trial is necessary. A petition may be filed, a court order signed and the property sold by the sheriff within a comparatively short period of time
188
Louisiana does not have or recognize the securing of a loan by a trust deed. Nor is there a "mortgage conveyance" to the lender, until the note is paid. The common law "strict foreclosure" and other labels and types of foreclosure do not apply. Nor do we have either "statutory" or "equity" redemption.
Common Law Comparison
189
provides for periodic payments that increase one or more times and adds accrued, but unpaid, interest to the unpaid principal balance.
graduated payment mortgage
190
provides that the rate of simple interest may be adjusted from time to time as set forth in the loan documents and is secured by a mortgage on immovable property, leasehold improvements, mobile homes, or residential mobile home.
The rates of interest may change according to certain indices, not different in principle from the commonly used adjustable rate mortgages in other states.
adjustable rate mortgage loan
191
a second or lower ranked mortgage that has a face amount that includes sums advanced plus outstanding balances on superior ranked mortgage or incorporates provisions for the debt servicing and any other matters related to superior mortgages, the unpaid balances of which are included in the face amount of the ___.
Wrap-around Mortgage.
192
charging more than the legal interest rate.
usury
193
Generally, legal interest for a simple loan is equal to a rate published annually in the ____
LA Register
It is one percent above the average prime rate of Chase Manhattan Bank, N.A. Citicorp, N.A. Morgan Guaranty Trust Company of New York, Manufacturers Hanover Trust Company, and Bank America Corporation. But the interest rate may not exceed 14% or be less than 7%. If it cannot be computed, the rate is 12%.
194
cannot exceed 12% per annum, but the owner of a note which is payable to the bearer or by assignment may claim interest up to 12% per annum, even though the rate or discount is beyond 12% per annum interest or discount.
The owner of a note which is payable to the bearer or is transferable by assignment may collect the whole amount, even though it may include a greater rate or interest than 12% per annum. However, the maximum rate stated in the note ~ 12% per annum from maturity, not from date of note.
conventional interest
195
Exemptions from usury and prohibition of interest on interest include:
1. V.A. guaranteed and F.H.A. insured loans.
2. Wrap-around mortgage loans as defined by Louisiana law, if the nominal interest does not exceed the rate allowed on a conventional mortgage.
3. Graduated payment mortgages, if the nominal interest does not exceed the rate allowed on a conventional mortgage, and if the original principal balance does not increase, as a result of the addition of deferred interest, to an amount greater than 150% of the original face amount.
4. Owner-financed loans secured by mortgage on the immovable sold. The rate may be up to that allowed to be charged by Federally insured financial institutions under federal law or regulations, or 17% whichever is less (unless the federal rate is below conventional rate allowed, in which case the rate could be the allowed conventional rate).
5. Loans for commercial or business purposes.
6. Loans covered by the Louisiana Consumer Credit Law.
7. Loans to corporations and partnerships.
196
forfeiture of the entire interest.
penalty for usury
197
a contract to sell immovable property in which the purchase price is to be paid by the buyer to the seller in installments. Title to the property is retained by the seller until full payment is made. The buyer usually takes possession. If the buyer defaults on payment, the seller may cancel the ____ after forty-five (45) days' notice by filing such a notice in the conveyance records of the parish where the immovable property is situated.
Bond for Deed
similar to the common law "Contract for Deed" or "Installment Sale" or "Land Contract"
198
a contract in which the parties give to each other a thing, other than money. It is not a sale and rescission for lesion is generally not allowed.
exchange
199
A party may agree that he will not sell a thing without first offering it to another person. can be enforced by specific performance. Unless otherwise agreed by the parties, the right must be exercised within 30 days and may not be granted for more than 10 years.
Right of Refusal
200
There are no ___ paid to the State of Louisiana. Those paid to the municipalities and parishes vary according to local ordinances that provide the tax rates. All tax rates are expressed as millages.
property taxes
201
The Louisiana constitution provides that property shall be listed on the assessment rolls at its assessed value, which shall be a percentage of its market value. The percentages are 10% for land, l0% for residential improvements, 15% for commercial buildings, l5% for electric cooperative properties (excluding land), 25% for public service properties (excluding land), and 15% for other property.
market value assessment
202
However, bona fide agricultural, horticultural, and marsh and timberlands are assessed at 10% of use value.
use value assessments
203
Many types of property are ___ from taxes.
exempt
204
The primary exemption of interest to the person involved with residential properties is the ____.
homestead exemption
This is not to be confused with the homestead exemption from seizure by creditors.
205
The ____ is $7,500.00 of assessed value, But the exemption does not extend to municipal taxes. A new owner, occupying his home, must apply to the assessor before April 15 for the year the exemption is claimed. Most parishes now provide for automatic renewal of the exemption so long as the property remains a homestead.
ad valorem tax exemption
206
Taxes are due ____. They are delinquent if not paid by ____ of each year, at which time penalties and interest begin to accrue. If not paid, the property will be sold at tax sale by the tax collector, the sheriff, or the city tax collector. There is no bidding. The property, regardless of its value, is sold for taxes, penalties, interest and costs due.
when the tax rolls are filed by the local parish assessors
December 31
207
Redemption within ___ is possible.
three (3) years
208
After a monition proceeding to confirm a tax title or ___, the failure to comply with formalities cannot be challenged.
five (5) years
209
a synallagmatic (bilateral) contract to which consent alone is sufficient and by which one party gives to the other the enjoyment of a thing at a fixed price. It's existence permits one person to reside on the land of another, but the lease is not a real right. It is not classified as an immovable and does not have to be in writing, regardless of the term (length)
lease
210
the landlord
lessor
211
the tenant
lessee
212
If the lessor (landlord) and the lessee (tenant) enter into a ___, it governs the relationship between them.
written agreement
213
If the lease is not in writing, then the ___ will govern.
civil code articles
214
There is no Louisiana concept of non-freehold estate or the various tenancies or estates known to common law, such as estates for years, periodic tenancy, tenancy at will, nor tenancy at sufferance.
common law v. civil law
215
Two kinds of leases are
(1) Lease For Rent (or Non-farm lease) – is the letting out of houses and movables, called lease for rent, and
(2) Farm Lease - letting out of predial or country estates.
216
If no time is specified in the lease, the lease is a _____. At least ten (10) days' notice before the expiration of the month is required to terminate it.
month to month lease
217
If a lease has expired and the lessee continues in possession for a week without opposition, the lease is presumed to have continued. The ten-day legal notice must be given before he can be compelled to vacate. But if it is a farm lease, and the farmer holds over a month without opposition, the lease shall continue for....
a year
218
The lessor (landlord) has a privilege on ____, except for certain items exempt from seizure, even if they belong to a third party. The third party may claim them prior to judicial sale, however. If they have been removed from the premises, the lessor can have them seized in exercise of his privilege within fifteen (15) days of removal.
movables found on the premises
219
For failure to pay rent, the lessee can be expelled. If he has not waived notice, in writing, and the lease does not provide otherwise, the lessor must give ____ notice to vacate.
five (5) days'
220
Upon filing eviction suit, the court will order the lessee to vacate, if the lessee is in default. Within ____, if he does not vacate, the court may order that he be expelled and the property cleared
three (3) days
221
Should the lessee furnish an advance deposit to secure any party of the lease, the lessor must return it upon termination of the lease within ____, less any amount required to remedy a default or unreasonable wear to the premises. An itemized statement must be given to the lessee, accounting for the proceeds retained and giving the reasons for the retention.
one (1) month
222
Should the lessee abandon the premises without notice or prior to termination, the lessor may retain the deposit without the itemizations. The tenant may recover ___ or ____, whichever is greater, plus costs and attorney's fees for willful failure to comply with these provisions. No waiver of the lessee's rights concerning these provisions is valid.
actual damages or $200
