Civil Law PropertyFall 2002

Art. 1 Sources of law- legislation and customArt. 2 Legislation is the solemn expression of the legislative willArt. 3 Custom

Custom- results from practices repeated for a long time and generally accepted as having acquired the force of law.

NOT same level of law- Custom may not abrogate legislation

Meaning of first 3 Articles:Legislation is the primary source of lawJurisprudence is the secondary sourceJudge provided with unprovided situation- turn to equity (Art. 4)Doctrine (articulated through academics) is an important persuasive source of law

Equity- what is right through reason and analogy – use reason, justice and prevailing usage

Art. 8 Repeal of law repeal may be entirely or partially repeal may be expressed or implied

Express- literally declared by subsequent lawImplied when new laws contain provisions that are contrary to former law

PROPERTY (defn) Exclusive right to control an economic good; refers to rights and obligations, privileges and restrictions that govern relations of man with respect to things of value.

Civil law of Property – has direct and immediate authority over real rights, ownership, personal servitudes, predial servitudes and mineral servitudes

Domain of Civil Law Property1. Economic goods, things of value- exclusive rights to control2. Real right v personal, contractual right

Real- direct and immediate authority; enjoy certain advantages that personal contracts do not

3. Things- law of property deals with principles or real rights

Art. 448 Division of Things Things are divided into:

1. Common, public, private2. Corporeals and Incorporeals3. Moveables (personal) and Immoveables (real)

Art. 449 Common Things

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cannot be owned by anyone—Air and High Seas Things that are to be used freely by everyone comfortably with the use for which

nature intended

Art. 450 Public Things A. Owned by state and political subdivision in capacity as a political personB. owned by the state—running waters, water bottoms, of natural navigable water

bodies, seashoreC. May belong to political subdivisions – streets and squares

CANNOT be owned by private ownership Inalienable and thus insusceptible of private ownership

Ownership is of public law nature All things owned by the state (public or private) are impresciptible

1. Public things that belong to the state – running waters, the waters and bottoms of natural navigable water bodies (river and lake beds), the territorial sea, and the seashore.

A. ImprescriptibleB. Inalienable (La Const. Art. 9, sec. 3, 4)C. Mineral rights on property sold by the state shall be reserved

2. Public things that may belong to the political subdivisions of the state : streets and public squares Imprescriptible

3. No public property of either state or municipalities is subject to seizure (La. Const. Art. 12, s. 10.)

4. Importance of Navigabilitya. Is the water body a public thing? (art. 450(2))b. Is the water body subject to public use? (art. 452)c. Is bank of river/stream subject to public use? (art. 456)d. General test of navigability: Is it capable of being used, in

ordinary condition, as highway of commerce over which trade or travel are or may be conducted in customary modes?

Note: STATE has two capacities- private (car) and public (park)

State Property (1870)1. Property in the Public Domain- all are entitled- can not be alienated or subject

to use change except by special legislative authority2. Property in the Private Domain- not for common use but used for the benefit or

advantage of the public; state or municipality can administer as see fit, subject to restrictions imposed by deeds or special laws

Characteristics of Publicly owned property

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1. Imprescriptible- public things of state or political subdivision All things owned by the STATE Lands and Mineral interests of the State Note private things of political subdivision are prescriptible

2. Not subject to Seizure- no public property of either State or Political Sub.

Private Things owned by individual, other private person and/or the state in private capacity

Colseum Square Association v City New Orleans Political Subdivision has the capability of making decisions – ie shift from public

to private Only thing that can never be converted from public to private use are navigable

water bottoms, with the exception of the reclamation and mineral rights Public use and interest in public things protected by forcing the state/ political

subdivision to apply legislative process and not engage in arbitrary and capricious decision making. Cannot simply change in a day.

Focus- shift classification of things under Civil Code to policy to determine if thing is needed for public use.

Art. 451 Seashore Article 451- Seashore is the space of land over which the waters of the sea spread

in the highest tide during the winter season. Article 451 revision b- the space of land in open coast that is directly overflown

by the tide Lake Pontchatrain is considered a shoreline and therefore- public

Art. 452 Public Things and Common Things Subject to Public Use Subject to public use in accordance with applicable laws and regulations. Use freely provided do not cause damage to property of adjoining land owners

The right to fish in the rivers, ports, roadsteads, and harbors, and the right to land on the seashore, to fish, to shelter himself, to moor ships, to dry nets, etc. provided that he does not cause injury to the property or adjoining waters.

Excludes the rights of individuals in the general public to build cabins on seashore.

Art. 453 Private Things Owned by individuals, other private persons and state or political subdivisions

in their capacity as a private person (ie mayor’s car)

Owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons.

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1. Alienable and thus susceptible of private ownership (things owned by the state in its private capacity

2. Governed by rules applicable to private property, but subject to exceptions established by laws and regulations

3. Private things of political subdivisions are prescriptible

Art. 454 Freedom of Disposition Private Things may be freely disposed of under modifications established by law Private Things are alienable (transferred), prescriptible (squatters) and subject to

seizures Conversely, Public Things are not prescriptible and can not be seized

Art. 455 Private things Subject to Public use Private things may be subject to public use in accordance with law and dedication Destined to be dedicated to the public and so the public has the right to use Examples—roads, banks of navigable river

Landry v Council of East Baton Rouge- airport closed no longer suitable for intended purpose

Is the airport public property in the private or public domain? Private- has the right to close; Public- no right to close- remains open to the

public Andersen v Thomas- public property belongs to the municipality by which it has

been acquired and may be dealt with as the municipality sees fit Art 458- not open to general public and quasi proprietary in fact charge fee

LA Const Article 9 section 3,4 Legislation shall neither alienate nor authorize the alienation of the bed of a

navigable body of water The mineral rights on the property sold by the state shall be reserved

Determination of Navigability1. Public Thing (Art 450)2. Subject to Public Use (Art 452)3. Banks of river and streams are subject to Public Use

Navigability- determines the classification of a natural body of water as a public thing if proven “highway of commerce” then public thing General Test- is it capable of being used, in its ordinary condition, as a highway

of commerce over which trade or travel are or may be conducted? Once its navigable it is always navigable

State v Two O’Clock Bayou cable car enjoinment

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Bayou found to be navigable in fact. If waterway is navigable, it is public property.

General Test of Navigability 1. Must be proven. It is never presumed.2. Body of Water is Navigable in law when Navigable in Fact3. Lack of Commercial Traffic does not preclude Navigability4. Navigable if usable for commerce in its natural state5. Construction of damn or other man made objects does not change status6. Navigable in depth, width and location for commerce7. Suitable for Commerce

Miline v Girodeau high water mark Land below the high water mark if an arm of the sea (ie Lake Ponchartrain) is

seashore, thus public thing and not susceptible of private ownership

Buras v Salinovich tidal overflow Issue- Is marshland that is subject to tidal overflow public or private? Plaintiff owned the marshland which was uncultivated, undeveloped and subject

to tidal overflow Def claim could hunt on it because land was seashore and thus common property Land deemed not seashore and PRIVATE Seashore refers to gulf coast and its lakes and bays along the gulf. The fact that the land was overflowed did not make seashore- water was not direct

salt water from the gulf or adjacent lakes, bays

Dunbar v Lafourche Realty Co indirect tidal overflow Inland, non-navigable water bodies and swamps subject to indirect tidal overflow,

but not direct coastal ebb or flow, is not seashore and may be privately owned. Marshland subject to annual fresh water overflow from MS River is not seashore

Art . 456 Banks of navigable rivers or streams Private Thing that are subject to public use Land between the edge of the water at the ordinary low stage and ordinary high stage

is the bank When a levee is in proximity to the water, established according to law, the levee

shall form the bank Art . 455 (2) it is owned by the adjacent landowner; however, is subject to public use

River Bay

Low Tide High Tide

Bed Bank

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Ownership of Navigable Rivers Beds of navigable rivers or streams are owned by the state (art 450 and 456) Islands and sandbars not attached to the banks, formed in the bed if navigable

waters, owned by the State (art 505) Beds of non-navigable rivers or streams belong to the Riparian owners, along line

drawn in the middle of the bed. (art 506) In the absence of title or prescription, the beds of nonnavigable rivers or streams

belong to the riparian owners along a line drawn in the middle of the bed. Nonnavigable lakes are private things.

Wimple v Eastham public use--navigable streams Def leased land from State and drilled for oil on one of the bayous Plain argues that the bayou was non-navigable and private and other navigable

bayou bottom and bed were owned by the State; however, bank = private property that could not be drilled on without his consent

Issue- is the land on which Def drilling private and under sole ownership of the Plaintiff?

Court says non-navigable property is private1. State owns the bottom of navigable waters2. Ownership of the bank of navigable stream is private and subject to public use3. Bottom of non navigable stream belongs to Riparian owner to the middle of

bottom Bed – land that is covered by the water at its ordinary low state. Bank- land between ordinary high water mark and ordinary low mark Important—Determine the streams Navigability

1. Bed Navigable goes to State2. Bed of Non navigable goes to the Riparian owners

State v Barras flood plain charged with trespassing, claimed flood land fishing on was public because

River was Nav Is flood plain of the Atchafalaya River part of the river and open to public use? No- focus on concept of levee—levee in proximity forms the bank Levee was four miles away from where fishing

Smith v Dixie Oil low water mark Navigable at one point then all of the beds below the ordinary low water mark

belong to the State

Batture alluvial accretions annually covered by ordinary high water, the highest stage the

river can be expected to reach annually in the seasons of high water

Art. 499 Alluvion and Dereliction

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Alluvion- accretion formed successively and imperceptibly on the bank of the river or stream, whether navigable or not. Alluvion belongs to the owner of the bank, who is bound to leave public that portion of the bank required for public use.

Dereliction- formed by water receding imperceptibly from a bank of a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction.

Note may not reclaim any land that is lost—Belongs to the State!

Art. 500 Shore of the sea or lake There is NO RIGHT to alluvion or dereliction on the shore of the sea or lake

SAPP v Frazier alluvion and dereliction Plaintiff bought land on lake which was partially dry for several months Land always considered public and Grass grew which was valuable as hay Neighbors wanted to cut grass and Plaint claimed the dry lake as alluvion Issue: Did the owner of the land adjacent to the lake own part of the bed that was

uncovered seasonally and temporarily? Court Rule: temporary, periodic or seasonal subsidence of waters or uncovering

of bed is not alluvion or dereliction.

Art. 501 Division of Alluvion Alluvion formed in front of property of several owners is divided equitably taking

into account the extent of the front of each property prior to the formation of the alluvion.

Each owner is entitled to a fair proportion of the area of alluvion and new frontage on the river, depending on the relative values of the frontage and the acreage

Art. 502 Sudden action of water In sudden action of waters of a river or stream carries away an identifiable piece

of ground and unites it with other land on the same or opposite bank, the ownership of the piece of ground is not lost.

The owner may reclaim it within a year, or later, if the owner of the bank with which it united has not taken possession

Art. 503 Island formed by river opening a new channel When river or stream, navigable or not, opens a new channel and surrounds

Riparian land making it an island, the ownership of that land is not affected

Art. 505 Island and Sandbars in Navigable Rivers Island and sandbars that are not attached to a bank, formed in the beds of

navigable rivers or stream, belong to the STATE Prescription does NOT run against the state.

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Art. 504 Ownership of abandoned bed when river changes course When navigable river or stream abandons its bed and opens a new one, the

owners of the land on which the new bed is located shall take by way of indemnification the abandoned bed, each in proportion to the quantity if the land lost.

If river returns, each take former land

State v Bourdon oxbow lake—navigable river attempted to obtain ownership of the bed of an oxbow lake which was formed

by the Red River, because lost land when river shifted course Issue: Who owns the bed of the Lake? Art 504-ownership of abandoned bed even if navigable when the river changes

course- owner takes as way of indemnification (becomes private) Losing land owner takes the new bed no matter how far removed from his

property

Pizanie v Gaithreaux navigable waterway wharf owned wharf on river fronting his property attempted to access the wharf by crossing his property to sell oil and gas Issue: Does the have the right to use the wharf which belongs to and which

is located on the bank of a navigable water way? Art 456- use without compensation to wharf is disallowed In addition the crossing of the land of a private individual is disallowed

Warner v Clarke hunting—public land hunting on land claim to be public even though the land is between the river

and levee which are privately owned Issue: Is the land between the levee and river open for the public to hunt? Court- NO Public does not have the right to hunt and fish on the MS River levee

land since the public access to the banks and levees is restricted

Riparian Landowner’s Rights on Bank

Art. 458 Obstruction Works built without lawful permit on public things that obstruct the public use may

be removed at the expense of the person who built them. Owner can not prevent removal by prescription of possession

This article includes sea, seashore, and the bottom of natural navigable waters, or on the banks of navigable rivers.

Art. 459 Encroachment and substantial damage Building that encroaches on a public way without preventing its use (and can’t be

removed without causing damage to owner) can remain. However, if the building is destroyed the owner is bound to restore the public part .

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Art. 460 Construction by port facilities Port commissions may construct and maintain on public places works necessary for

public utility. This includes beds of natural navigable water bodies, and on their banks or shores.

Works includes buildings, wharves, and other facilities for the mooring of vessels and the loading or discharging of cargo and passengers

Lake Providence v Bunge private land—navigable river attempted to halt building of a grain elevator on the banks of the MS River Claimed that is an arm to the state, it has sole power to regulate river traffic and

commerce claims because it owns the property, it has the right to develop the land so long

as it does not obstruct public use Issue- Does the have the right to develop its property? Court: YES Land between the levee and a navigable river is private land that is

open to the public. may construct any manner of works on its land so long as it does not obstruct the public use.

Lakes Article 450- Navigable beds are owned by the State Article 500- Riparian owners have no rights to alluvions or derelection in regards

to lakes Article 506c- Non navigable lakes are private things- ie swamps State v Class Co Oil- The bed of the lake extends to the ordinary high water mark When lake erodes or causes Riparian land to submerge- to bad State gets Distinguish between a lake from river or Stream- size, depth, width, banks,

channels, current, historical destination

Vermillion v Vaughn public use—man-made canals Does the public have the right to use man-made navigable canals on private property

constructed and maintained with private funds. National Audubon v White- concluded that canal on private property constructed with

private funs and used private purpose is private

Moveables and Immovables

Art. 461 Corporeals and Incorporeals Corporeals- things which have a body and can be touched or felt Incorporeals- things that have no body but are comprehended by the

understanding , inheritance, servitude

Art. 462 Tracts of Land Tracts of land, with their component parts are immovables

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Important to distinguish because o transfer of immovables require a greater deal of formalityo Acquisition of prescription o Connected with immovable when transferred go with mortgage

Important in Environmental law, taxes, court law

Art. 463 Component parts of tracts of land Buildings, other constructions permanently attached to the ground, standing timber,

and unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground.

Comment (d): R.S. 9:1103 Standing timber is a separate immovable when it belongs to a person

other than the owner of the ground Classification of standing timber as a component part of the ground

does not determine the question of the ownership of the timber. This question is determined under the juridical act, prescription, or accession.

Comment (e): Article 474 (1978) in La. Jurisprudence codified unharvested crops and ungathered fruits of trees are movables by anticipation when

they belong to a person other than the owner of the ground when they are burdened by security rights or privileges they are movables by

anticipation insofar as the creditor is concerned.

Art. 464 Buildings and standing timer as separate immovables. Buildings and standing timber are separate immovables when they belong to a

person other than the owner of the ground.

Art. 465 Things incorporated into an immovable Things incorporated into a tract of land, a building, or other construction, so as to

become an integral pat of it, such as building materials, are its component parts.

Immovables MovablesTracts of land and component parts Cut treesComponent Parts- timber owned by another harvested CropsOther Constructions if belong to ground Construction own other than ownerUnharvested Crop belonging to owner Unharvested crops not belonging to ownerIncorporated things – building material separated for a purpose of repair

Building material not yet incorporated

Component parts of a building and other construction

Demobilized things

Immoveables by declaration Everything else not immovable

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Buildings when they belong to the owner of the ground

Separate immovables when owned by other persons

Art. 466 Component Parts of Building or other Construction Things permanently attached to the building or other construction- plumbing, cooling,

electrical Considered permanently attached if they cannot be removed without substantial

damage to themselves or the immovable to which they are attached

Art. 467 Immovables by declaration 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 shall be filed for registry in the conveyance records of the parish in which the immovable is located.

Art. 468 Deimmobilization Component parts of an immovable so damaged or deteriorated that they can no longer

serve the use of lands or buildings are deimmobilized. The owner may deimmobilize the component parts of an immovable by an act

translative of ownership and delivery to acquirers in good faith. In the absence of rights of third persons, the owner may deimmobilize things by

detachment or removal.

Art. 470 Incorporeal Immovables Rights and actions that apply to immovable things are incorporeal immovables.—

personal servitudes, predial servitudes, mineral rights

Art. 469 Transfer and Encumbrances of immovables Transfer or encumbrances of immovables include the component parts

Art. 472 Building materials Materials gathered for the erection of a new building or other construction, even

though deriving from the demolition of an old one, are movables until their incorporation into the new building of after construction.

Materials separated from a building or other construction for the purpose of repair, addition, or alteration to it, with the intention of putting them back, remain immovables.

Art. 473 Incorporeal Movables Rights, obligations and actions that apply to a movable thing are incorporeal

movables. Movables of this kind are bonds, annuities, and interest. Interest or shares in a juridical person that owns immovables are considered

movable as long as the entity exist

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Upon its dissolution, the rights of each individual to a share in the immovable is immovable

Art. 474 Movables by anticipation. Unharvested crops and ungathered fruits of trees are movables by anticipation when

they belong to a person other than the landowner. Incumbered with security rights of a third person Declared to immovable by owner by act of translative ownership or a pledge For separate owner of growning crops to assert his rights against third persons his

interest must be recorded

Art. 475 Things not immovable All things, corporeal or incorporeal, that the law dos not consider as immovables, are

movables.

Landry v LeBlanc Immovable objects require written permission if a transfer of ownership is to

occur Contract to sell Immovable title must be in writing and have the mandate

authority of the owner to dispose of the land

PHAC Services v Seaway All buildings are immovable even if built to move and not attached to the ground In order to clarify as a building, based on the prevailing notions of society

o sizeo cost o intended useo permanency of the object

Bayou Fleet v. Dravo Limestone bases attached to ground Art. 463 Other constructions permanently attached to the ground belong to the

owner of the land Test from jurisprudence-size, degree of attachment, and permanentcy of the object Should have recorded in the lease

Equibank v. IRS and Shell v. Boze Chandeliers removed/ carpet When deciding if an object is an immovable or a movable consider Art. 466 and

societal expectations

Baumer Foods v. City of New OrleansHow do you make an immovable by declaration, Art. 467:

Owner Not for private residence Must place the immovable for service or improvement

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Declaration must be filed

The court decided to satisfy the third requirement it must be placed for improvement and actually be used

Standing timber

Art. 463 standing timber is a component part of a tract of land when it belongs to owner of

ground

Art. 464 separate immovable when belongs to someone else

When dealing with timberland, be careful about status if separate ownership has been declared in public record the sale of the land does not include the timber

If no public record act translative of ownership and must be recorded to affect the third party

Act does not have a fixed time for removal, court can do it.

For separate owner of growing crops to assert his rights against third persons, his interest must be recorded.

Willets v. Concordia Fixed time for removal decided by court

Art. 474 Movables by anticipation unharvested crops: to be affected by a third person and must be recorded.

Art. 468 De-immobilizationa)damagedb) the owner declares by act of translative ownership and delivery to third personc) detatchment or removable by owner, in absence of t hird personex: Equibank – bank held mortgage therefore, Johnson’s could not remove

Art. 472 Building Materials Movables before they are installed Once they are installed and removed, they become immovable

Art. 470 Incorporeal immovables Rights to immovable thingsEx: personal servitude, mineral rightsIncorporeal comprehended by understanding

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Art. 473 Incorporeal Movables

Rights, obligations, and actions that apply to a movable thing (e.g. bonds, annuities, and interest/shares in entities possessing juridical personality)

Interest or shares in a juridical person that owns immovables are considered as movable as long as the entity exists; upon dissolution, the right of each individual to a share in the immovables is an immovable

A trust is a relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.

Income beneficiary – get the profit and the income generated during the term

Principal beneficiary – get the corpus when the trust terminates; during the term he receives nothing

Art. 475 All things corporeal or incorporeal that the law does not consider as movable will be

immovable

Art. 471 Corporeal movables are things, whether animate or inanimate, that normally move or

can be moved from one place or another.Examples – Cash, funds in savings accounts, bearer bonds, certified cashier checks.

SCB v. Bartholomew - Art. 461, 471, 463

Software is a tangible object that is taxable – it is a movable object

Comparable to a book or movie – cannot be enjoyed until transferred to a physical format

Art. 477 Ownership is a right that … direct, immediate and exclusive authority over a thing within the lilmits of the law.

Art. 478 Usufruct can use the land but never become owner of it

Usus - useAbusus - disposeFructus – enjoy

Naked ownership – ownership with no right to the property

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Resolutory condition – dependant on certain event, Immediately enforced but will come to end when uncertain event occurs

Art. 481 Ownership is distinguishable over possession. Ownership cannot be lost by non-use

Art 480 Co ownership Two or more persons may own the same thing in indivision, each having an

undivided share.

Art. 603 Disposition of Naked Ownership In theory, could sell if anyone wanted to buy mortgage, but could not disturb

property’s use of enjoyment

09/18/02

Art. 476 Rights in things1. Ownership2. Personal and predial servitudes (rights to land)3. Such other real rights as the law allows

Comment b-real rights confer direct and immediate authority over a thing.

Art. 477 Ownership; content ownership is the real 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.

(usus, frutus, abusus)

the complete and legal right over a thing- Aubry et Rau

Art. 478 Resolutory Condition; real right in favor of other person The right of ownership may be subject to a resolutory condition, and it may be

burdened with a real right in favor of another person as allowed by law. The ownership of a thing burdened with a usufruct is designed as naked ownership.

Art. 535 Usufruct Real right of a limited duration of a property of another.

Art. 603 Disposition of the naked ownership cannot affect the usufruct

Art. 607 Death of the usufructuary

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person who has the right of the usufruct expires upon the death of the usufructuary

Art. 481 Ownership and possession distinguished The ownership and the possession of a thing are distinct. Ownership exists independently of any exercise of it and may not be lost through

non-use. Ownership is lost when acquisitive prescription accrues in favor of an adverse

possessor.

Art. 480 Co-Ownership 2 or more persons may own the same thing in indivision, each having an undivided

share.

Patrimony

All assets and liabilities accumulated throughout a lifetime that are inherited.

Classical idea of patrimony- expression of personality: “the cohesion of the various values composing a person’s patrimony and the resulting universality of rights and obligations is explained as an attribute of personality..”

Three corollary propositions regarding patrimony; Only natural and juridical persons have patrimony, art. 479 Every person has a patrimony even if it contains liabilities only Every person has only one patrimony that is inseparable and indivisible

Art. 3182 Debtor’s general liability Whoever has bound himself personally, is obligated to fulfill his engagements out of

all his property, movable and immovable, present and future. Would bound entire patrimony including newly acquired assets.

Art. 3183 the property of the debtor is the common pledge of his creditors, and the proceeds of

its sale must be distributed among them pro rata, unless there exists among the creditors lawful causes of preference.

Debtor’s property common pledge of creditors: exceptions to pro rata distribution

Art. 3506(28) General Definitions-Successor Successor is the person who takes the place of another There are in law two sorts of successors universal successor by particular title, such

as the buyer, donee, or legatee of particular things, the transferee The universal successor represents the person of the deceased, and succeeds to all his

rights and charges

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The particular successor succeeds only to the rights appertaining to the thing which is sold, ceded or bequeathed to him.

Cannot give away everything owned now and in the future because the law does not allow, i.e. to prevent the defraud of creditors

You cannot have an intervivos transfer of patrimony.

Modes of Acquiring Ownership

Transfer of ownershp by agreementVoluntary transfers of movables and immovables

No one can transfer a greater right than they have.

Original acquisitions:1. Occupany2. Accession3. Acquisitive prescription

Derivative acquisition:1. Sale2. Donations3. Successions

Art. 517 Voluntary transfer of ownership of an immovable The ownership of an immovable is voluntary transferred by a contract between the

owner and the transferee that purports to transfer the ownership of the immovable The transfer of ownership takes place between the parties by the effect of the

agreement and against third persons when the contract is filed for registry in the conveyance records…

Comment (d) transfer must be in writing provided the transferor confesses when interrogated that actual delivery has been made

Art. 518 Voluntary transfer of ownership of a movable The ownership of a movable is voluntary transferred by a contract between the owner

and the transferee that purports to transfer the ownership of the movable. Unless otherwise provided, the transfer of ownership takes place as between the

parties by the effect of the agreement and against third parties when the possession of the movable is delivered to the transferee.

When possession has not been delivered a subsequent transferee to whom possession is delivered acquires ownership provided he is in good faith

Creditors of the transfer may seize the movable while it is still in his possession DELIVERY IS THE KEY

Art. 521 Lost or stolen thing

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One who has possession of a lost or stolen thing may not transfer its ownership to another

For purposes of this chptr, a thing is stolen when one has taken possession of it without the consent of its owner

A thing is not stolen when the owner delivers it or transfers its ownership to another as a result of fraud.

Yiannopoulos Interpretation of Art. 521 and related arts.“the owner of a lost or stolen thing may reclaim it in the hands of the finder or of the thief as well as in the hands of any acquirer who purchased it in good faith for fair value.”

Art. 522 Transfer of ownership by owner under annullable title A transferee of a corporeal movable in good faith and for fair value retains the

ownership of the thing even though the title of the transferor is annulled on account of a vice of consent.

Really narrow applicability

Art. 523 Good faith; definition An acquirer of a corporeal movable is in good faith for purposes of this chapter unless

he knows it was from a theft or lost thing

Art. 524 Recovery of lost or stolen things The owner of a lost or stolen movable may recover it from it form a possessor who

bought it in good faith at a public auction or form a merchant customarily selling similar things on reimbursing the purchase price.

The former owner of a lost or stolen or abandoned movable that has been sold by authority of law may not recover it form the purchaser

Art. 525 Registered movables The provisions of this chpt do not apply to movables that are required to be registered; i.e special rules for motor vehicles, boats, etc.

Autochephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts

Δ claim that they purchased the mosaics in good faith

Under LA law the mosaics would have to proven to be stolen

Planiol on Co-Ownership

“A thing belonging to several co-owners is in indivision when the right of each owner bears upon the whole (and not upon a given part) of the thing held in common. “

Shares are not tangible shares, but fractional shares The rights of each co-owner must be pictured as striking every molecule of the

thing… Section 2497 Indivision ends by partition, i.e. by division of thing

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Expressed traditional civil law professor of co-ownership

*Co-ownership was really disfavored in French law, if you allowed co-owners to continue their agreement it would take it out commerce, so they limited this co-ownership to five years

Harrell on Co-Ownership

Co-ownership is therefore essentially a voluntary relationship dependant fro its existence upon the continued will of the owners

Each co-owner has an equal and correlative right to personally to personally occupy and use all of the property without regard tot the extent for this fractional interest if his activities are consistent with the destination of the property.” (pg. 268)

“Courts will not regulate the ordinary use of the property by several co-owners.: (p.268)

Courts will not settle ordinary disputes

Butler v. Hensleypartition was the suggested remedy and the co-ownership is legal so should be viewed as such even though it was a bit of a sham

Percentage of ownership irrelevant in determining owner’s rights

Correlative right to use property without regard to extent of his fractional interest.

LeBlanc v. Scurto partition was the suggested remedy and one co-owners use cannot interfere with the others

Party’s use of alley was wasteful and spiteful according to the court

Art. 797 Ownership in indivision; def. Ownership of the same thing by two or more persons is ownership in indivision In the absence of other provisions of law or juridical act, the shares of all co-

owners are presumed to be equal

Rights and Obligations of Co-Owners

1. share the fruits and products in proportion to ownership, less deduction of costs, but not co-owner’s own labor, Art. 798, cmt. (c)

2. take necessary steps for preservation, repair of thing, without consent of co-owners. Art. 802 cmt. (c)

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entitles to reimbursement for expenses paid to third persons for same, less deduction for value of enjoyment. Art. 806

3. use thing according to its destination. Art. 8024. petition court for determination of use and management in absense of agreement

and when partition is not available. Art. 803 see Succession of Miller

5. Lease, alienate or encumber his or her share. Art. 8056. Demand partition in absence of law or agreement. Art. 807

Obligations1. liable to other co-ownrs for damages caused by their fault. Art. 799

(only actions, not inactions can be cause for fault)2. obtain agreement from all other co-owners on use and management of thing. Art.

8013. allow other co-owners to use thing according to its destination. Art. 802

co-owner cannot use thing exclusively and cannot dispose of thing without consent of co-owners. Cmt. ( c)

4. Obtain consent of all co-owners for substantial alterations or improvements. Art. 804

Penalties for doing so without consent parallel accession art. 496 and 4975. obtain consent for lease, alienation or encumbrance of entire thing. Art. 8056. May not demand partition when:

There is agreement, for period up to fifteen years in general and up to 99 years for nuclear power plants. Art. 807 and LA. R.S. 1112 & 1702, or

Use of things is indispensable for enjoyment of another thing owned by one or more co-owners. Art. 808

Partition: Mode determined by agreement or in absence of agreement by court. Art. 809

Partition of kind-when thing can be divided into as many lots as there are shares and values of all lots is not significantly less than value of property as whole. Art. 810

Partition by licitation-when not susceptible to partition in kind

Effects of partition on real rights

Regardless of mode of partition, a real right burdening the entire thing is not affected. Art. 812, see cmt. ( b)

When real right burdens one co-owner’s share, real right attaches to part of thing allotted (in partition by kind) or share of proceeds (in partition by licitation) Arts. 813 and 815

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Succession of Miller – 8 kids sharing expensive home on Audubon Blvd.Cannot order partition of indivisible thingArt. 803 – in the absence of agreement, court will decide

Glazer v. SontheimerFamily plots could not be partitionedValue – graves would allow the children to rest next to mom and dad

ACCESSION1. Fruits and Products

a. Article 482 – Accession The ownership of a thing includes by accession the ownership of

everything that it produces or is united with it, either naturally or artificially.

b. Basic ownership of fruits and products belong to the owners from which they were derived

c. Accession is the consequence of ownershipd. Article 483 – Ownership of fruits by accession

In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits

e. Article 551:Fruit- things that are produced by or derived from another without diminution of its substance

1. Natural Fruit- products of earth and animals2. Civil Fruit- revenues derived from a thing by operations of

law or juridicall acts- rentals, interest...f. Article 488 – Products; reimbursement of expenses

Products derived from a thing as a result of diminution of its substance belong to the owner of that thing.

When they are reclaimed by owner, a processor in good faith has the right of reimbursement of their expenses.

A processor in bad faith does not.g. Article 487 – Possessor in good faith

A possessor is in good faith when he possesses by virtue of an act translative of ownership ( ie act of sale) and does not know of any defects in his ownership.

Needs some legal act Ceases to be good faith possessor when the defects are made known to

him or an action is instituted against him by the owner for recovery of the thing.

Comment f: example of patrimony - Universal successor occupies the same position as his ancestor. Particular successor possesses by virtue of an act translative of ownership.

h. Good Faith v Bad Faith

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Good Faith Bad Faitha) Keep fruit gathered and gets reimbursed for expenses of producing ungathered fruit – Art.486.

a) Only gets expenses for production. Must return fruit. – Art. 486

b) Reimbursed for expenses of production of products (timber & mineral) – Art. 488

b) Producers always get expenses for production- even in bad faith - Art. 485

i. Elder v Ellerbe- dispute over mineral royalties and bonuses Minerals are not considered fruit because not born and reborn. Minerals = products and products belong to the owner Therefore must repay 50% share

j. Harang v Bowie Lumber Co- GFP cut and removed timber1. Timber = products 2. Fruit- key is production and reproduction in reasonable time frame3. Therefore, Plaintiff will recover value but reimburse Defendant for

expenses

k. Art 490 – Accession above and below surface – unless otherwise provided by law, the ownership of a tract of land carries with it the ownership of everything that is directly above it or under it.

l. Mineral Code Article 6 Oil and gas in place (under ground) are not owned by the land owner

or any other person Not subject to absolute ownership as specific things apart from soil Own right to explore—once produce and possess then own it

2. Artificial Accession- Separate Ownership of Buildings, other constructions, timber, crops and fruit

a. Article 491 - Buildings, other constructions, timber, crops and fruit Buildings, other constructions, timber, crops and fruit may belong to

person other than the owner of the ground However, they are presumed to belong to the owner of the ground

unless separate ownership is evidenced by instrument filed for registry in conveyance records of parish in which immovable located

b. Article 492- Separate Ownership part of a Buildings Separate ownership of a past of a building (floor, apartment, room)

may be established only by a judicial act of the owner of the entire building when and in a manner expressly authorized by law

c. Marcellous v David – moving house? Ct held that the house belongs to the defendant because ownership

never transferred. Was to transfer in will; however, still alive—therefore overcame the

presumption of land To transfer ownership of immovable need authentic act

d. Graffagnino v Lifestyles – O Dome

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Verbal agreement and lease not recorded therefore could not preserve ownership

Appellate court felt Lifestyles had time and should have protected itself by: recording lease or remove property or negotiate with new owners

e. Article 493- Ownership of Improvements Buildings, other constructions permanently attached to ground and

plantings made on the land of another belong to owner of ground when made without consent

When owner of ... no longer has right to keep them on the land of another, he may remove them subject to his obligation to restore the property to its former condition

If does not remove within 90 days after written demand, the owner of the land acquires ownership of improvements and owes nothing to their former owner

f. NOTE> Preserve ownership with respect to third party—RECORD!!!!!g. Article 493.1 – Ownership of Component Parts

Things incorporated in or attached to immovable so as to become its component part belong to the owner of the immovable

h. Article 493.2 – Loss of Ownership by Accession; Claims of former owner One who has lost the ownership of a thing to the owner of an

immovable may claim against him or against a third person in accordance with the provision

i. Article 495 – Things incorporated in or attached to an immovable with the consent of the owner of the immovable Concerns the consensual attachment of things that component parts of

immovable In absence of provision of law or judicial acts, owner may remove

them provided he restores the landj. Constructions, Planting or works by Good and Bad Faith Possessors

Good Faith Constructions Bad Faith Constructionsa) Article 496- owner of immovable may not demand demolition and removal

a) Article 497- owner of immovable may keep or demand removal or demolition at expense of the possessor and demand damages

b) Owner is bound to keep them and at his option to pay the possessor the cost of the materials and workmanship OR current value OR enhanced value

b) If does not demand demolition, he is bound to pay at his option the current value of materials and workmanship OR enhanced value

k. Britt v Brister – U shape land and tree GFP claims the slab is an improvement and request reimbursement Def claim that can not use slab- poured according to GFP ideas Def sued the GFP for continuing trespass and succeeded

l. Voiers v Atkins- built cisterns, cabins, etc. --- bad faith possessor

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determine whether the improvements were separable or inseparable to see what a bfp can recover

RULE: BFP can get reimbursed for necessary expenses or separable improvements that the owner decides to keep

m. Sanders v Jackson – boundary dispute GFP; however, the court held that did not have to pay because did not

enhance the value of the land

3. Accessions to Movablesa. Article 508- Things principal and Accessory

Things are divided into principle and accessory For purpose of accession between movables, an accessory is a

corporeal movable that serves the use, ornament or complement a thing.

b. Article 509- Value or bulk as a basis to determine principal thing The most valuable, or the most bulky is value is nearly equal, shall be

deemed to be principalc. Article 510- Union of a principle or accessory thing

Two corporeal immovables united to form a whole and one is an accessory of the other, the whole belongs to the owner of the principal thing

The owner of the principal thing is bound to reimburse the owner of accessory its value

Owner of the accessory may demand that it be separated and returned to him, although separation may cause some injury to the principal thing, if the accessory is more valuable than the principal thing and has been used without his knowledge

d. Aetna v LA Machinery Corp – caterpillar engine Ct held that the two pieces were easily detached with no harm. Lease was temporary therefore the machine was never intended to

remain Two items always retained separate identities only temporarily

connected therefore no ACCESSION No unity of ownership between unit and pump

4. OCCUPANCY A mode of acquiring a thing that belongs to nobody. It is done by taking possession with the intent of becoming the owner

of the thing. This mode of acquisition therefore consists solely in the taking

possession.

a. Occupancy only possible with respect to two kinds of Isolated Movables:

Res Nullius- never had a master Res Derelictie – those abandoned by their master

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b. Treasures and lost things are not subject to occupancyc. Wildlife Public Things

Wildlife – res nullius- belong to no one in particular. Everyone may acquire though ownership by occupancy (Yippi)

But until captured, state owns all wildlife (birds, fish shellfish) as public property

d. Article 3412 – Occupancy Taking possession of corporeal movable that does not belong to anyone.

Occupant acquires ownership moment take possession.e. Article 3413 – Wild Animals

Natural liberty belong to the state as public person Own may take possession as law regulates Owner of a tract of land may forbid entry to anyone for purpose of

hunting or fishing. Nevertheless, despite prohibition of entry, capture of wildlife belongs to the capture

f. Article 3418 – Abandoned Things One who takes possession of abandoned things with the intent to own

it acquired ownership by occupancy. A thing is abandoned when its owner relinquishes possession with the

intent to give up ownershipg. Article 3419 – Lost Things

One who finds corporeal movable that has been lost is bound to make a diligent effort to locate its owner and return the thing to him

If a diligent effort is made and the owner is no found within 3 years, the finder acquires ownership

h. Article 3420- Treasure One who finds a treasure in a thing that belongs to him or to no one

acquires ownership of the treasure. If the treasure is found in a thing belonging to a owner, half the

treasure belongs to the owner and half belongs to the person who found it

i. United States v Peters- Gold Certificate in mattress Legal question was this: Lost, abandoned or treasure? Not treasure because could determine the true owner by the

preponderance evidence Therefore, lost- 3 years to find owners and heirs were waiting.

Charrier v Bell – Indian Artifacts (p343) Once again dealt with the three category of things: abandoned, lost and treasure Not abandoned- family members placed with the deceased love ones to be there

for perpetuity Not lost- could establish rightful owner Not treasure – ownership could be established Proves hard to prove abandoned or treasure

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DISMEMBERMENT OF OWNERSHIP

Real v Personal RightsReal –

ownership of a thingrelationship between you and the entire world

Personal – Right or legal power one has against another to demand performance – obligationrelationship between you and another person

Article 476 – 3 Categories of Rights in Things1. Ownership2. Personal and predial servitudes3. other real rights that the law allows

USUFRUCT

Article 533 – Personal servitude and predial serviture

Article 646 - Predial servitude Charge on servient estate for the benefit of a dominant estateRite of passage

Article 534 – Personal ServitudeCharge on a thing for the benefit of a person

3 types of personal servitudes:1. Article 630 – Habitation

The non-transferrable real right of a natural person to dwell in the house of another (right of use only)

2. Article 639 – Right of Use; Limited personal servitudeRight of use confers in favor of a person a specified use of an estate less than full enjoyment

3. Article 534 – UsufructReal right of a limited duration on the property of anotherThe features of the right vary with the nature of the things subject to it as consumables and nonconsumablesUsufruct can be established on corporeal, incorporeal, movable and immovable

Conventional Usufruct

Created by a juridical act; contract (inter vivos)Testamentary – mortis causa

Legal Usufruct

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Operations of law imposed usufructs in certain situations Ex: surviving spouse

Article 890 – Usufruct of a surviving spouseDeceased spouse survived by descendants surviving spouse shall have usufruct over decedent’s share of community property (1/2 share) to the extent that decedent has not disposed of by its testament (no will)Usufruct terminates when surviving spouse dies or remarries

Article 891 Devolution of separate property

Article 536 – Consumable thingsCannot be used without being expended or consumed i.e. money, beverages, agricultural goods

Article 537 – Non-consumable thingsEnjoyed without alteration of their substance

Article 538 – Usufruct of consumable thingsUsufructuary becomes owner of them. He may consume, alienate or encumber them.At the end, he is bound to pay the naked owner either the value the thing had at the commencement of the usufruct or deliver to him things of the same quantity or qualityCreates practical problem b/c at death, there may not be means to restore or repay naked owner at end of usufruct.

Article 539 – Usufruct of non-consumable thingHas a right to possess them and derive the utility profits and advantages that they may produce under the obligation to preserve the substance. He is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct in good condition.

Leury v. Mayer – Stock in bank

Dad did not have right to transfer Mom’s stock because it was non-consumable.P gets mom’s portion of stock and dividends after dad died.

Vivian State Bank v. Thomason- Lewis Lumber – Certificates of deposit

Mom was valid in giving away $5k because it was a consumable asset. She is entitled to use and enjoy the property as she sees fit.

Contractual & Testamentary Freedom

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Article 545 – Generally there is a wide berth for exercise of contractual and testamentary freedom with a few key limits

Article 546 – Usufructs may be established in favor of successive usufructuariesArticle 547 – When usufruct is established in favor of several usufructuaries, termination of the interest of one co-usufructuary inures to benefit of those remaining unless provided otherwise

Article 548 – One limitation – usufructuaries must exist at the time of creation of the usufruct

Article 549 – Usufruct establishes in favor of a natural person or a corporation

Michel v. Knox – husband dies and leaves movable prop to wife and usufruct of immovableNature of usufruct can be altered by testament

Usufruct

What is the purpose? It gives a property owner an ability to do different things to his property. You can provide a home for the living spouse with one sentence in a will. A way of preserving assets and avoiding co-ownership.

Divisibility and Partition of the usufruct and naked ownership

Art. 541 Divisibility of usufruct Usufruct is susceptible to division, because its purpose is the enjoyment of

advantages that are themselves divisible. It may be conferred on several persons in divided or undivided shares and it may be partitioned among the usufructuaries.

Cmt B- Terminates when the person’s share transfers to another usufructuary

Art. 542 Divisibility of naked ownership The naked ownership may be partitioned subject to the rights of the usufructary. Comment (b)

When naked ownership is held by several persons in undivided shares, partition of the naked ownership may be demanded by any of the naked owners. see Smith v. Nelson. Note this does not affect the usufruct

Art. 543 Partition of the property in kind or by licitation When property is held indivision, a person having a share in full ownership may

demand partition of the property in kind or by licitation, even though there may be other shares in naked ownership and usufruct.

A person having a share in naked ownership only or in usufruct only does not have this right, unless a naked owner of an undivided share and a usufructuary of

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that share jointly demand partition in kind or by licitation, in which event their combined shares shall be deemed to constituted a share in full ownership.

Cmt C- Usufruct and naked owner combine creates confusion and full ownership

Smith v. Nelson partition of the usufruct and of naked ownership Ct. used art. 543 to make their decision. Children holding interest in naked ownership can not demand partition—ie none

had both, usufruct and naked owner- ie co-owner- therefore could not demand partition

By testament the usufruct did not terminate after remarriage

Campbell v. Pasternack Holding Co. – mineral rights If a law if procedural it can be applied retroactively; substantive changes cannot

be changed retroactively Surface ownership rights are like naked ownership rights art. 542- naked

ownership may be partition subject to the usufruct.

Rights of the usufructuary Rights to fruits

Art. 550 Right to all fruits The usufructuary is entitled to the fruits of the thing subject to usufruct according

to the following articles

What kinds of things are considered fruits and thus belong to usufructuary and what kind are not fruits and thus belong to naked owners?

Fruits-Usufructary Not Fruits- Naked Ownership*Article 552Cash dividends(during the usufruct) unharvested fruitHarvested fruit

*Art. 553- Rights share stockUsufructuary gets to vote Split- get ownership

Liquidation

*Art 556-Civil FruitsRental payments(accrue day by day)

*564 – TreasureIf find get ½ If not found Usufruct – get full ownership

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Kennedy v. Kennedy - Tree farm or not? Clear cut or selective cut Is it a treefarm? No Is it a timberland? Yes Is it prudently administered? Yes Article 551 (b)

Trees that are born and reborn of the soil but they are ordinarily considered to be capital assets rather than fruit.

Art. 560 Trees, stones, and other materialsThe usufruct may cut trees growing on the land of which he has the usufruct and take stones, sand, and other materials form it, but only for his use or for the improvement or cultivation of the land.

Gueno v. Medlenka mineral rights

Mineral Code §191 when oil and gas wells and lignite operations considered open mines§195 usufruct over land only not minerals; right of naked owner of land to enjoyment of minerals

What kinds of things are considered fruits and thus belong to usufructuary and what kind are not fruits and thus belong to maked ownership?

Fruits-usufructuay Not fruits-naked owner

Rule art. 195 in regards to Gueno-surviving spouse would get the mineral and usufructary rights

Open mine doctrine- art. 190-a

Art. 189 of MC see pg. 666

Extention of UsufructRight of usufruct extends to?

Right of Usufruct extends to accessories of thing at commencement of usufruct. Art. 559, and

Usufruct extends to the increase of land caused by alluvion or dereliction; however, they do not own it. Art. 563, and

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Usufruct has right enjoyment of predial servitudes due to the estate of which he has the usufruct. When estate enclosed within other lands belonging to the grantor of the usufruct, the usufruct is entitled to the right of passage. Art. 565

What kinds of rights may be enjoyed or what kind of actions may be taken by usufructuary?

What kind of action? What kind of alienations? Limits? (lease, sell, mortgage-but responsible for the

use that the tenant encumbers on the property-never really divested!) Disposal? Of what? What happens upon disposal?

Art. 566 ActionUsufructuary may institute against the naked owner or third persons all actions that are necessary to insure the possession, enjoyment, and preservation of his right. Example file action to enforce lease

Art. 2730 Termination of LeaseA lease made by one having a right of usufruct, ends when the right of usufruct ceases. The lessee has no right to indemnification from the heirs of the lessor, if the lessor has made known to him the title under which he possessed.

Art. 567 AlienationThe usufruct may lease, alienate or encumber his right. All such contracts cease at the end of the usufruct. If does any of the above, he is responsible for any of the abuse that the person contracted with may cause.

Art. 568 Disposition Cannot abandon a nonconsumable thing, but may dispose of corporeal movable that are impaired by use, wear, or decay as long as he acts a prudent administrator. Upon disposition, the usufructary is bound to pay to the naked owner at the end of the usufruct the value that the things had at the time of disposition.Ie- can dispose of corporeal movables; cannot dispose of nonconsummable things unless the right was expressly granted

Art. 569 RestorationIf usufructuary has not disposed of corporeal movables that are by their nature impaired he is bound to return in the state in which they may be at the end of the usufruct. The usufructuary is relieved of this obligation if the things are entirely worn out by normal wear, use, or decay.

Art. 558 Improvements and alterationsThe usufruct may make improvements and alterations on the property subject to the usufruct at his cost and with the written consent of the naked owner. If the naked owner

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fails to or refuses to give consent, usufructary may, after give notice to the naked owner and with the proper court approval make improvements.

Sparks v. Dan Cohen Co. Art. 2730 a lease made by one having a right of usufruct, ends when the right of

usufruct ceases If the usufructary advises the lessee of the usufructary no recourse If fail to advise then have claim against the estate of the usufructary Communication is the key

Obligation of the usufructuary1. Inventory:

Art. 570 InventoryThe usufructuary shall cause an inventory to be made of the property subject to the usufruct. In the absence of an inventory the naked owner may prevent the usufructuary’s entry into possession of the property.The inventory shall be made in accordance with the rules est. in art. 3131-17

2. Security Art. 571 Security

The usufructuary shall give security that he will use the property subject to the usufruct as a prudent admin. and that will faithfully fulfill all the obligations imposed on him by law or by the act that established the usufruct unless security is dispensed with.

a. security may be dispensed with by grantor or by operation of law. Art. 573

b. legal usufructuaries and sellers or donors of property under reservation of usufruct NOT required to give security. Art. 573

c. IE buy bond

Art. 572 Amount of the security…The security shall be the amount of the total value of the property subject to the usufruct. The court may increase or reduce the amount of security, on proper showing, but the amount shall not be less than the value of the movables subject to the usufruct.

Art 574- Delay in giving noticeUsufruct starts working before the security is givenIe- delay in get bond—still get money for crop

Art. 575- Failure to give security If the usufruct does not give security, a proper court may order that the property be delivered to adminstrator appointed in accordance with 3111-3113.Ie- Appoint administrator till does.

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Succession of Carlisi What was Lucas Carlisi’s mistake? He imposed this obligation to secure by

testament – if he hadn’t she wouldn’t have to post a security What is your advise to charities and collateral relatives?

Just wait and be patient may get her portion

3. Liability for losses from fraud, default or neglect.Art. 576 Standard of care

The usufructuary is answerable for losses resulting from his fraud, default, neglect etc.

4. Repairs and expenses-ordinary and extraordinary: Arts 577-581; Succession of Crain

Usufructuary Naked OwnerArt 577 Ordinary repairs Art 578 extraordinary repairsPainting roofLeaks boat houseBroken windowAC repair

Art 579- Rights of action for repairsCan not compel the naked owners to do repairs

Usufruct shall be reimbursed without interest by the naked owner at end of usufruct

5. Abandonment and Ruin

Art. 581- Liability for necessary expensesThe usufruct is answerable for all expenses that became necessary for the preservation and use of the property after the commencement of the usufruct.

Art. 582 Abandonment of usufructThe usufructuary may release himself form the obligation to make repairs by abandoning the usufruct or, with the approval of the ct., a portion thereof, even if the owner has instituted suit to compel him to make repairs or bear the expenses of them, and even if the usufructuary has been cast in judgment.He may not release himself from the charges of the enjoyment during the period of his possession…

Art. 583 Ruin from accident or decayNeither the usufructuary nor the naked owner is bound to restore the property that has been totally destroyed

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6. Annual Charges (taxes)

Art. 584 Annual chargesThe usufructuary is bound to pay the annual charges imposed during his enjoyment on the property subject to the usufruct, such as property taxes.Note can not yank his usufruct away if not pay taxes

G. Termination of the usufruct- Art. 607-629a. When does a usufruct teminate?

Natural person? When he dies Art 607Legal entity? 30 years or dissolution of the thing Art 608Legacy of revenues? Art. 609 flip side of habitation- right to fruits instead of useUsufruct est. for term or subj to condition? Term. of the term – Art 612Usufruct of nonconsumables? Extinction or non use Art. 613 Transfer of usufruct to another person? Art 612What property is subject to a mortgage?

Art. 614: Fault of a third person

Loss of property subject to usufruct ad there is a damage to the fault of a 3rd party, usufruct does not terminate but attaches to any claim for damages and the proceeds therefrom.

When property is subject to mortgage:

Art 620: Sale of the property of the usufruct.

Usufruct terminates by enforcement of the mortgage placed on property prior to the creation of the usufruct.

Instances when it does not terminate is when the naked owner sells the property, the mortgage is placed upon the property by the naked owner after the creation of the usufruct does not affect the right of the usufructuary.

Judicial sale by action of the creditors.

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Art. 621 – Prescription of non-use.

10 years of non-use terminates usufruct

Art. 622 – Confusion

Naked owner and usufruct become the same person

Art. 623 – Usufruct terminates if usufructuary commits waste, alienation, neglect or abuse.

Art. 624 – Consequences of Abuse

Usufruct may terminate or decree the property be delivered to usufruct with reasonable annuity the end of the usufruct

Art. 626 – Usufruct renounces his rights in writing. Can do it without court approval.Creditor of usufructuary can prevent if he chooses.

Barry v. USF&G (auto accident, car (usufruct) totally destroyed)

Art. 613: Loss that is purely accidental and jurisprudence has said the survivor’s usufruct does not terminate “merely because the property to which the usufruct attached was changed in form”

Court wished to avoid involving all parties to usufruct

Bond v. Green (house gets eaten by termites)

Usufruct over house and land; Did usufructuary have the right to continue to use property and place a mobile home on it.

P: because of waste and neglect; usufruct had terminated

D: property was already in decay so they were not obligated to repair it

Art. 583: Ruin from ancient or decay

Neither usufructuary or naked owner is bound to restore property

Art. 584: Annual charges

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Usufructuary bound to pay annual charges imposed during his enjoyment … such as property taxes

Even usufructuary does not pay annual charges, usufruct does not terminate. Naked owner ultimately responsible.

Art. 615: When a property changes form for a variety of reasons, usufruct does not terminate, but attaches to proceeds or thing that replaces property. Changes form without any act of usufructuary.

Art. 616: Sale of property – usufruct attaches to proceeds of sale unless parties provide otherwise.

Art. 617: Insurance Proceeds- when proceeds of insurance are due, on account of loss or extinction or destruction of property subject to usufruct. Usufruct attaches to proceedsIf usufructuary or naked owner has separately insured his interests only, the proceeds belong to the insured party.

Kimball v. Standard Fire Insurance Co. (Bobbie murdered husband and house burned down suspisciously)

Art 617: Because she bought separate insurance policy, she was able to keep proceeds.

Naked ownership should demand safe investment but will be unlikely to get it.

Watson v. Federal Land Bank of Jackson

Mom had usufruct over property kids naked ownership; mortgage defaulted;sheriff’s saleWhich paid off initial mortgage; Prudential paid off kid’s debt

Excess proceeds from sale of property will go to usufructuary after initial mortgage is exhausted.

Creates an exception to Art. 620

Art 628: General rules nonconsumables upon termination, full ownership is restored

If property lost or deteriotated through fault of usufructuary, owner gets value property otherwise would have had at termination. Id.

Art. 629: General rule consumable upon termination, usufructuary bound to deliver to owner … same quantity or quality or value they had at commencement of usufruct.

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Art. 627: Right of retention upon termination of usufruct, the usufructuary has the right to retain possession of the property until reimbursed for all expenses and advances

Succession of Heckert – naked ownership does not expire regardless of how long they wait to make a claim

Ct. found imperfect usufruct bc it was a nonconsumable, so it is like a house, a usufruct over a nonconsumable can be turned over at the end, the naked owner just has to ask for it, the title never left the possession of the naked owner, plus the father remarries-usufruct terminates, naked ownership becomes the co-ownership

HABITATION

Art. 630 HabitationHabitation is the nontransferable real right of a nat. person to dwell in the house of another.

Art. 631 Establishment and extinctionThe right of hab. is est. and ext. in the same manner as the right of the usufruct

Art. 634 Extent of right of habitationA person having the right of habitation is entitled to the exclusive use of the house or the part assigned to him, and provided that he resides therein, he may receive friends, guest, and boarders

Aucoin v. Fontenot Cazan Hotel

Ct. finds that it is a habitation. Implied party’s intent in regards to their actions.However, problem is the use exclusive or not… therefore, check the party’s actions

PREDIAL SERVITUDES

Predial Servitudes

A. General principles

What are the key characteristics or features of a predial servitude? What is its purpose?

Art. 646 – Predial servitude is a charge on a servient estate for the benefit of a dominant estate. 2 estates must belong to different owners.

Two different estates, servient and dominant.

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o What does estate meant? Tracts of land and buildings-distinct corporeal immovables

o Who must estates belong to? Different owners

Who benefits from the charge imposed by a predial servitude? Any owner

How long does predial servitude last? forever-perpetual, but can be extinguished for nonuse after 10 years

What kind of charge is allowed? affirmative-some things can be taken advantage of some use and negative-some restrictions of use

Owner servient estate cannot place specific obligations on the dominant owner

What kind of obligations can be imposed on servient estate and its owner? Cannot put oblig on the owner but has the duty to keep up the estate

Art. 647 Benefit to dominant estate

There must be a benefit to the dominant estate. The benefit need not exist at the time the servitude is created; a possible future advantage suffices to support a servitude.

Must have some socially useful purpose

Art. 648 Contiguity or proximity of the estates

What kind of relationship must exist between the dominant and servient estate? NONE

Art. 649: Nature; incorporeal immovable

Predial servitude is an incorporeal immovable

Art. 650: Inseparability of servitude

Inseparable from dominant estate and passes with it. The right of using the servitude cannot be alienated or encumbered separately from the estate.

Nature/Characteristics/Purpose of Predial Serivitudes

Corporeal or incorporeal?

The predial servitude can be extinguished.

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Can it be separated from the dominant estate, does it run w/ the servient estate when ownership changes?

No it is an inherent thing

What are the obligations of the owner of the serv. Estate?

Art. 651 Servient estate does not have to have active service to the dominant estate, mostly just maintenance to keep it fit for the servitude

Contractual obligation can bind a servient to do certain things but that is only to the individual not everyone Can a predial serv. Be divided?

Art. 652 a predial serv. is indivisible, every one should be able to use it as long it is not a burden

Natural Servitudes

Involve limitations on the rights of ownership

Art. 655 Natural drainageAn estate situated below is bound to receive the surfact waters that flow naturally from an estate above unless an act of man has created the flow.

Ex. An higher elevation track of land, drill some oil wells, find oil mixed with water, let it drain to get the oil, but damages the property next to it, does he have the right to the drainage servitude- no it is not surfact water!

Art. 656 Oblig of the ownerThe owner of the servient estate may no do anything to prevent the flow of the water. The owner of the dom. Estate may no do anything to render the serv. more burdensome.

Brown v. Blankenship drainage ditch The responsibility is to the servient estate to honor the natural servitude Δ allowed ditch clog – prevented π drain See Article 655 and 656 Δ has a duty to keep free and clear

Legal Servitudes

Art. 659 Legal servitude; notion

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Legal serv. are limitation on ownership est. by law for the benefit of the gen. Public for for the benefit of a particular person

Art. 665 Legal Public Servitudes (Levee)Serv. imposed for the public or common utility, relate to the space which is to be left for the public use by the adjacent proprietors on the shore of navigable rivers, and for the making and repairing of levees, roads and other public or common works.

All that relates to this kind of servitude is determined by laws or particular regulations.

What is batture and what is its significance? Levee board has the right to take dirt from your property. Can not take possession.

See Desambourg v. Board of Commissioners and Yiannopoulos treatiseCompensation for land appropriated for land

When is riparian property subject to the levee serv. expressed by Art. 665?Ancient Servitude – imposed for the benefit of public for purpose of constructing a levee.

See Deltic Farm & Timber V. Board of CommissionerRiver changed course, land that was of issue was riparian land but originally wasn’t, this statute can only apply when: 1. prop. must have been riparian when separated from the public domain. 2. for appropriation purposes it only applies to batture

Obligations of the Neighborhood

Art. 667 Limitations on use of propertyAlthough a proprietor may do with estate whatever he please still he cannot make any work on it , which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him …

Proprietor may do what pleases but can not deprive neighbor to do what want to do with own property

He is answerable for damage if knew or should have known Exception: an ultra hazardous activity which is specifically limited to pile driving

or blasting with high explosives

You cannot use your property anyway you want! You must consider your neighbor!

Art. 668 Inconvience to neighborAlthough one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvience to his neighbor…Do what want only if cause minor inconvience.Problems typically zoning not property law

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Art. 669 Reg. Of inconvenienceIf the works or materials for any manufactuary or other operation, cause an inconvenience by those in the same or in neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by …subject to police rules or local customs

Salter v. BWS Corp. dumping of industrial waste Dumping industrial waster on own property – harm neighbors Barham – Frazier has no real rights so Art. 667 should not apply, but he can use

Art. 669 No real rights only personal claims against the possor Problem Fraiser was not land opwner—lessee so no real rights

Encroaching Buildings

Art. 670 Encroaching buildingsWhen a landowner constructs in good faith 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 of the encroachment…payment for compensation for value of servitude and any other damages may cause.Building hanging can keep it but pay for it

Thompson v. Hemphill encroaching buildings Move the trailer and compensate that landowner for the encroaching building Compensate landowners and if it can be easily moved without damage or

destroying utility must go

Enclosed Estates

Art. 689 Enclosed Estate: right of passageThe owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion

a. Creates a legal serv. but requires dominant estate to pay compensationb. Bc it is a legal serv. , it will be imprescriptiblec. Enclosure means no access to public road, regardless of access to railway or

tramway. Rev. Cmt. (change in the law)

Art. 690 Extent of passageThe right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate

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Benefit of enclosed estate—fishing road- enough room for truck—12ft not 4 lanes

Art. 691 ConstructionsThe owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary. For the exercise of the serv.

Art. 692 Location of passageThe owner of the enclosed estate may not demand the right of passage anywhere he chooses.Can not pick and choose should be the shortest route that is the least injurious

Art. 693 Enclosed estate: voluntary actIf an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors or NOT bound to furnish a passage to him or his successorsOne exception typically arises in a sale situation and the voluntary servitude does not give rise to a predial servitude.

Hypo: Buy land with enclosed estate does the seller have the obligation to provide right of passage?

Predial servitude created the day the land becomes landlocked.In the spirit of commerce—some sort of servitude will be allowed

Art. 694 Enclosed estate; voluntary alienation or partitionWhen in the case of partition or a vol. Alienation of an estate or of a part thereof, property alienated or portioned (lost land) becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised…Vendor must furnish a right of passage to the one who purchased the estate even if not the shortest distance.

Right to demand a passage arises only when lands alienated or lands partitioned become enclosed as result of vol. Alienation or part.

Conversely, no right to a gratuitous passage when lands retained become enclosed as result of vol. Alienation

Covers vendeer, buyers, donees, acquires of enclosed estates with respect to estate that previously provided passage, but it does not cover vendors donors who become enclosed as result of alienation of parts of their own estates (prohibited prior to art. 693)

BC Art. …

Stucky v Collins But when right of passage across vendor’s land is impossible or impractical

enclosed owner may seek Art. 689 servitude across a neighbor’s land

Patin v Richard

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Art. 694 can be asserted by successors of buyer against selle. But see Patin v. Richard

Conventional servitude may be loss by nonuse for 10 yrs Article 689- Imprescriptable is what serves the servient estate—ie right of passage But if granted to a person than can prescribe in 10 years.

Rockholt v. Keaty What is primary Motivation for finding that Rockholt is entitled to servitude of

passage? The govt. build Int. 12 and created to separate properties. Were they entitled to a legal serv. under art. 689? TC said no it wasn’t enclosed.

But Barham found otherwise, the laws underlying contention was to solve civil problems. The interstate was a limited access road.

What did he do wrong to prevent him from getting one in this case? Interstate ran on property but there was no exit Rockholt wanted to cross Keaty’s property to get to his other property. Told him

he could have sued to Art 689 – given access to drive through subdivision. Lovett disagreed- tie up court—and also nearest public road was long distance as

opposed to cutting through subdivision.

Leblanc v. Thibodeaux5 children own property. They divide all property but 72 acres of marsh land. That prop. remains indivision. That property is surrounded by the 5 piece’s of prop. they divided. They agreed on an access route at the time of partition. This prescribed due to non-use 10 years later. Court decides they do have right of passage. Π argues that Predial servitude was voluntarily surrendered by non-use prescription. Article 689Who is more right? Majority or Lemmon?Majority relied on art. 693 but Lemmon relied on art. 689 (more accurate and straight answer)

Art. 689 Servitude never prescribes

Art. 695 Relocation of servitudeThe owner of the enclosed estate has no right to relocation of this servitude after it is fixed.The owner of the servient estate has the right to demand relocation to a more convenient

Art. 696 Prescriptibility of action for indemnity No prescription on the right of passage.

Conventional Servitudes

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Art. 697 Right to est. predial servitudes; limitationsPredial servitudes may be est. by an owner on his estate or acquired for its benefit.The use and extent of such servitudes are regulated by the title by which they are created, and in the absence of such regulation, by the following rules.

What is the key limitation imposed by public policy that generally cannot be modified by agreement? You cannot obligate a person (French history), nothing more than making the servient estate suitable and can not go against public order.

Restraints/Prohibitons on Competition, Alienation, Use etc. Restraints/Prohibitions on Competition? Should be enforced as personal

obligations not servitudes. Law in LA not clear in this point better way may be non-compete clause in a contract.

Agreements requiring purchase/sale of certain quota of products? No- can not impose an act on the other party—to servitude not the person.

Restraints on Alienation of Immovables? Yianno feels that there can be some restraint can be imposed as long as it is within the law and in reasonable time limits. Ie never sell to certain type of class. – political correctness can never enforce it!!

Traditional View v. Yiannopoulos’ view? Tradional view doesn’t agree with Yianno view

Restraints on Use? -allow some objects – height and set ups—ie can not build house over so many stories

Building restrictions?- mainly for new subdivisions—place certain covenants into order

Kinds of Servitudes

Article 706 Affirmative v. Negative Servitudes: -- key prescription! Affirmative serv. gives the owner of the dom. est. to do something- prescription

begins on the date of last Neg. serv. dictates that the owner of the dom. est. abstain from doing something-

prescription begins from the date of the occurance of an event contrary to the servitude

Article 707- Apparent v. Nonapparent Servitude:- key acquire!Apparent serv. are perceivable, can be obtained a number of ways- title, destination of owner or acquisitive prescriptionNonapparent can only be obtained through titles

Acquisition of Servitudes

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A. By title Art. 708 Est. of predial serv. The est. of a predial serv. is an alienation of a part of the prop. to which

the law

So who can est. predial ser. And what limits apply?1. Mandatory? Art 709 An agent, yes-have to have the

express written authority of the owner to do the specific act.

2. Naked Owner? Art 710 Yes, but cannot interfer or infringe on the usufructuary

3. Usufructuary? Art 711 No, no ownership.4. Co-owner? Yes, with consent of all of the co-owners. art.

714; Art 715- if co –owner gives consent can not take back5. Mortgagor (owner who grants a mortgage)? Art 721 Yes,

but you may have to pay more or faster bc mortgage could term. bc it affects the value of the property

6. State or Pol. Subdivision? Art 723 Yes

What kind of act will create a conventional predial servitude by title?

General rule:Art. 722 Modes of establishmentPredial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right of the owner of the dominate estate constitutes tradition.Needs formality—must be written—can be transferred from testament, sale, donation…delivery occurs when act transferred or dominate estate starts using

Art. 730-734: Rules of Interpretation and Construction for agreement that may create predial servitude

Doubt resolved in favor of servient estate. Art. 730 Express charge for benefit of another estate is predial servitude even if not so

designatied Art. 731

Kelly v. Pippitone- driveway in the middleNote agreement was made on the people not property! If it had been on property than would have had an argumentDriveway- predial servitude? No it was a discontinuous serv. and not in the title.

Langevin v Howard

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Issue 1 notation on check- create servitude? Notation on check too vagueTestimony—admissable but stated under oath that only 2 years which would have already prescribed.Langevin would get a right of passage over Turk’s property gratutiuosly Art. 693

Acquisition by Acquisitive Prescription

Art. 742 Acquisitive PrescriptionApparent servitude 10 years peaceable and uninterrupted possession good faith and just titleUninterrupted possession 30 years without title and good faith

Art. 3483 Just Title – juridical acts sufficient to transfer ownership or real right

Acquisition by Destination of the Owner

Art. 741 Destination of the owner

2 estates owned by same owner predial servitude when ceases belonging to same owners, unless express provisions to the contrary apparent servitude comes into existence Nonapparent servitude comes into existence when the owner has filed for registry

Why did the Π in each case fail to est. the existence of a predial servitude?

Ryan v. MonetWhy wasn’t the overhang of the ac units a predial serv. by title? Art. 647 Future advantage, wouldn’t apply bc it is too specific and ac’s weren’t considered

Language in the agreement specifically stated overhang and gutters which excluded a/c units under the predial servitude.

Acquisitive prescription couldn’t apply …30 years had not yet passed

Art. 670 Encroaching bldg.? The ac units are not component parts of the building, they could be removed.

730 Bienville Partners LTD v. First Nat. Bank (Conventional servitude)

Was there destination of the owner? Some sign that they wanted to est. an apparent serv. and evidenced by exterior signs. The evidence was found inside the bldgs. not outside, there wasn’t any wording in the surveys, there was previous contractual oblig. so there was no intent to preserve a servitude.

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The condition was placed on the contractual obligation that once the contract ended, the servitude ceased.

Rights of Owner of Dominant Estate Art. 744-750

What can the owner of the dominant estate do or demand from owner of servient estate?He can make any works necessary for the use of the dominant estate. Art. 744

Are there any limits to what the owner of the dominant estate can do or demand?Art. 745 least possible damage

What duties/limits are imposed on servient estate? Art. 748 – can do nothing to diminish or make inconvenient

Location/Relocation burdens?Art. 748 How you move a servitude from one location to another? He may relocate the servitude but it has to be an equally convenient location and all relocation costs are paid by servient estate

Silence in agreement as to extent and manner of use?Art. 749 when silent the intent of the servitude will be reviewed to determine its purpose

Art. 747: Division of dominant estate – if dominant estates divide, servitude remains due at the same place

Hymel v. St. John the Baptist Parish School BoardThe court used 749 – 25 foot right of way between school for cane field

School not concerned about safety of kidsSpecific nature of the contract expressed the scope of the servitude

Ryan v. Southern Natural Gas. Co.Backfill of northern strip of canal from SNG’s pipeline; 20 years later serious erosionContractual agreement between parties --- SNG not liable

Ryan relies on Art. 745 removal with the least possible damages-did not apply because of the agreement . Contractual freedom overrides suppletive rules.

Art. 697 when regulating a contract…Art. 666 legal servitude Very broad application

Extinction of Servitudes—Art. 751-774

General rule about prescription of non-use: a predial serv. is extinguished by nonuse for ten years. Art. 753

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What constitutes use so as to interrupt or prevent the running of prescription?

Art. 754: Affirmative prescription begins at the date of last useNegative prescription begins at the date of the use contrary the servitude

Whose use interrupts prescription? Owner of dominant estate, or someone who has to serve the purpose of the servitude who is related to the servient estate. Art. 757

What kind of use? Use of any part of the servitude, co-owners can interrupt prescription Art. 762 if partitioned each co-owner has the right

Use of accessory to servitude is not use of servitude. Art.761 Who has burden of proving use? Owner of the dominant estate

Art. 755If the owner of the dominant estate is prevented from using the servitude by an obstacle that he can neither remove nor prevent. Prescription suspended up to ten years. New art. Imposes ten year limit on suspension. Obstacle creates suspension, not interruption. Cmt b & c Suspension due to material obstacle under Art. 755 occurs only when obstacle arises…

Art. 765 Confusion – 2 owners of dominant estate become one

Art. 756 – failure to rebuild the dominant or servient estate If dominant estate has destruction, prescription does not suspend

Pertinent questions:When does prescription of non-use

Extinction of Servitude – Articles 751-774

What events extinguish a predial servitude – at least 7 ways mentioned in the code?

1. Art. 751: Destruction of dominant or servient estate … permanent and total destruction of the dominant estate or of the part of the servient estate burdened with the servitude

Comment b: if distrubtion if merely temporary, as in the case of a total inundation, the servitude if not extinguished; there is merely a material obstacle to the exercise of the servitude.

Servitude does not revive; it continues to exist.

Comment c: if destruction is partial, the servitude continues to exist for the benefit of the remaining part by virtue of the principle of indivisibility.

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2. Art. 752: Impossible to use because of dramatic change.

3. Art. 765: Confusion : A predial servitude is extinguished when the dominant and the servient estates are acquired in their entirety.

4. Art. 770: Abandonment of servient estate : A predial servitude is extinguished by the abandonment of the servient estate, or of the part on which the servitude if exercised. It must be evidenced by a written act. The owner of the dominant estate is bound to accept it and confusion takes place.

5. Art. 771: Renunciation of servitude : A predial servitude is extinguished by an express and written renunciation by the owner of the dominant estate.

6. Art. 773: Expiration of time or happening of condition : A predial servitude established for a term under a resolutory condition is extinguished upon the expiration of the term or the happening of the condition.

7. Art. 774: Dissolution of the right of the grantor : The predial servitude is extinguished by the dissolution of the right of the person who established it.

When does a prescription of nonuse begin to run?

Art. 754: Commencement of nonuse: Affirmative servitudes – from the date of their last useNegative servitudes – from the date of the occurrence of an event contrary to the servitude

Event contrary to the servitude is such as the destruction of works necessary for its exercise or the construction of works that prevent its exercise.

When is predial servitude suspended in lieu of extinction?

Art. 766: Resolutory condition: When the union of the two estates is made under resolutory condition, or if it ceases by legal eviction, the servitude is suspended and not extinguished.

Art. 767: Acceptance of succession: confusion: Until a successor has formally or informally accepted a succession, confusion does not take place. If the successor renounces the succession, the servitudes continue to exist.

What type of servitude never prescribes?

Art. 758: Imprescriptibility of natural servitudes: prescription of nonuse does not run against natural servitudes.

Art. 685 – Legal servitudes never prescribe

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Tilley v. Lowery

Bridge was never built or discussedCheck the language of the contact;

Q: What is the source of key rule that determined the outcome of the case:

A: Servitude commences when parties agreed to it Since contract was not specific, the court resolved in favor of servient estate.

Q: What is the key rule? (When does prescription of nonuse run when owner of dominant estate never actually commences use?

A: Art. 730: Doubt as to the existence, extent, or manner of exercise of a predial servitude shall be resolved in favor of the servient estate.

Lovett’s comment: Court said suspensive condition does not apply here because language said “servitude was created” … Seems like courts could have applied suspensive condition but it that would have prevented the servitude from coming into condition relying on Art. 730

Ashalnd Oil v. Palo Alto

Q: What constitutes “use” of this pipeline servitude for purposes of interrupting prescription of nonuse?

A: Ashland transported CO2 through pipeline when they closed plant – they still transported CO2 across the pipeline and released it into the air for the purposes of maintaining the servitude. Court said use was inconsistent with intent of creation of servitude … use of pipeline was a “mere gesture”

Majority said contract was for production of methanol. Lovett’s comment: could have been saying that the “mere gesture” of transporting the CO2 was not a socially useful purpose.

Dissenting opinion: Servitude’s purpose was not specific and should not necessarily limit the use.

Lovett: the long term effects of a decision like this will result in more complicated contracts between parties

Yippi: dissent was right.

Broomfield v. LP&L

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Pine trees and heart attack and power lines

Is there a servitude crossing Broomfield’s property? Trial court said “No.”

What constitutes “use” of the powerline servitude for purposes of interrupting prescription of nonuse? Power company came in and cut trees

1) pole’s existence did not constitute use and was not an integral and essential part of the line

2) accessory use – LP&L’s entry of property to maintain clearance was accessory use. Did not constitute enough use to interrupt prescription because it was not enough to constitute partial use.

LP&L was servitude but Brum’s get no damages

This case really distinguishes between: Article 759: Partial use: a partial use of a servitude constitutes use of the whole.Comment b: this article speaks to the mode of the exercise of the servitude rather than the different problem of the partial use of the area subject to the servitude.

Article 761: Use of accessory right: the use of a right that is only accessory to the servitude is not use of the servitude.

Comment b: Example – someone with servitude of drawing water from neighbor’s well passes over the servient estate and goes to the well without drawing any water, he will lose the servitude because the passage is merely accessory to the right of drawing water.

Guzetta v. Texas Pipeline Co.

Integrates law of servitudes, abandonment and accession.

Pipeline in swamp buried in swamp. D quit using pipeline and did not want to pay for removal.

Did pipeline servitude here contain a resolutory condition that if met could trigger a termination?

Q: Obligation to maintain pipeline; Guzetta must prove abandonment to extinguish servitude

A: Art. 764: Burden of proof use: When the prescription of nonuse is pleaded, the owner of the dominant estate has the burden of proving that he has used the servitude during the prescriptive period .

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Q: When does abandonment occur?

A: Court applied occupancy articles – Art. 3418 that they were owners by way of occupancy. P gave up all rights in relation to pipeline. Parties never intended to own the servitude.

Q: Is landowner entitled to compel removal or to recover damages under law of accession?

A: Art. 493 but did not say who pays … court said leave it where it is.

How would you resolve the case?

Look at the intent of parties. Check terms of contract, circumstances. Read into the distinctions, if wanted Art. 493 if unwanted improvement, do more facts weighing custom and usage.

Limited Personal Servitudes

LP&L v. Holmes

Holmes wants to build something on his lot:- LP&L says its encroachment of their servitude – unsafe & dangerous if broken

Was servitude established by St. Julien Doctrine ? public or quasi-public corp. – servitude over land where landowner acquiesces in const. of facilities. Holmes never objected.

Did construction of building beneath powerline interfere w/ servitude?Not a legal servitude – court viewed LP&L as juridical person but a limited personal servitude – real right in the land Art. 651: must keep estate in suitable condition

How could servitude be enforced?Someone who possesses real right for more than a year’s use is disturbed is entitled to an injunction

Court determined right to be a real right not a personal right. If someone posseses a real right for over a year, they are entitled to protection of that right.

Art. 639: Right of use – confers in favor of a person a specified use of an estate that is less than full enjoymentExample: draw under from a wellIntermediate category between usufruct and predial servitudes

Rights of use

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Who can benefit? Natural person or legal entity. Art. 641

What kind of advantage? Established by predial servitude can only grant affirmative right (right to do something) Art. 640

Extent of servitude? Greater burden cannot be imposed on the property unless otherwise stipulated. Art. 642

Is it transferable or heritable? Yes unless prohibited by law. Art. 643

Art. 644 – Not extinguishable by death unless provided to contrary by law

Art. 645 – How is it regulated? By application of rules governing ususfruct and predial servitude as long as it is compatible with rules governing right of use servitude

Wagner v. Alford – limited personal servitudes are transferable

Was service agreement binding on Alford’s company? Yes, if it is found to be limited personal servitude.

Did it create a right of use in favor of Wagner’s and binding on all subsequent owners of the resort? No.

Court said use of land was dependent on monthly payment, service agreement was an obligation and not a personal servitude. Terms were too vague. When in doubt, find in favor of servient estate.

What was dissent’s viewpoint? Service agreement was personal servitude. Agreement was clear. Art. 645 – allows delineation from definition of conditions of usufruct or predial servitude.

Legal Servitudes

Dallas v. Farrington – Plantation divided into 8 lots

Servitude of passage – previously owned by P’s vendor and now vendor’s sonP seeks to enjoin son from interfering with servitude

Issues: (1) Was conventional servitude established by P and vendor which is enforceable?(2) Is P entitled as owner of enclosed estate, to demand a forced passage?Plantation divided into 8 lots. In negotiations π was allowed a right of passage. Passage was not in actual deed of sale. Court ruled that a conventional servitude was not created as not in actual public record documents. Final court agreed that he did have legal

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servitude. He did lose this servitude when he acquired an additional lot that was adjacent to road.

Bldg restrictions Art. 775 – 783

Must be created by titleMust be recordedMay be enforced like property rights2 year prescription for non-use, running from date of noticeable

sui generis – can be imposed “in pursuance of general plan. Government building, standards, specified uses and improvements”

generally regulated like conventional predial servitude or rights of use. Title recorded, enforced like property rights. 2 years non-use prescriptive period. Owners of more than ½ area can agree to terminate.

At time of sale from Farring to Dallas, a gratuitous serv was created

Possession and Acquisitive Prescription

Possession - Art. 3421 – detention or enjoyment of a corporeal thing. One holds or exercises by himself.

Art. 3422 Nature of Possession right to possess. Possession is a matter of fact; nevertheless,

Rights in possession of possessor: reimbursement for certain expenses considered owner until one is established

Right to possess (1 year of undisturbed possession and the intent to possess as owner)

Acquisitive Prescription (10 year or 30 year)

Planiol on Possession Art. 2263 Definition

Possession is a state of fact which consist in holding a thing in an exclusive manner and in carrying out on it the same material acts of use and of enjoyment as if its possessor were the owner

Art. 2264 Progresive Extension of the idea of PossessionUnder Roman law, possession has two elements: physical or corpus, and inten or animus

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a. corpus: physical acts of detention, use, enjoyment and transformation carried out on a thing that constitute possession. Not juridical acts.

b. Animus: possessor’s intent

Art. 2285 Effects of PossessionFacts of possession, alone or joined to other circumstances, produces various juridical consequences

a. protected by means of presumption of ownershipb. protected by means of possessory actions which defend against physical

violencec. leads to acquisition of ownership as regards to fruits which possessor of a

fruit bearing thing gains as regards to things itself and this either immediate manner (full explanation P. 173)

Corporeal, Civil and Constructive Possession

Art. 3425 Corporeal possessionCorporeal possession is the exercise of physical actso fuse, detention, or enjoyment over a thing.

Assisted by Three Helper Articles: Art. 3428 Acquiring corporeal possession through aid of

precarious possessorArt. 3429 Maintained by aid of precarious possessor, e.g. lessorArt. 3420 Juridical person acquires it through reps.

Art. 3426 Constructive PossessionOne who possess a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title. In the absence of title, one has possession only of the area he actually possesses.

Art. 3431 Retention of Possession; civil possessionOnce acquired, possession is retained by the intent to possess as owner even if the possessor ceases to possess corporeally.

Key – presence of title

Whitley v. Texaco – constructive possession

Court said Texaco had valid titleLovett’s title: when there are 2 conflicting constructive possessions, the one with valid title and prior title trumps.

If possession established the other party has to prove that they have claim to the property.

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When two conflicting constructive possession, the one first established with a valid title has the right

Manson Realty v. Plaisance

P seeks to have D remove shacks and fences in Elmwood

Rule: possession of part of tract constitutes possession of whole. Appeals court overruled trial court.

Plaisance had constructive possession because he only used part of land and held valid title

Acquisition, Exercise, Retention and Loss of Possession

Art. 3424 Acquisiton of possessionTo ….

Two key presumptions related to exercise and retention of possessionArt. 3427 presumption of intent to own the thing One is presumed to intend to possess as owner unless he

Art…..

Loss of Possession and Right to Possess

Art. 3433 Loss of Possession Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation

Art. 3434 Loss of the right to possessThe right to possess is lost upon abandonment of possession. In case of eviction, the right to possess is lost if the possessor does not recover possession within a year of the eviction.

When the right to possess is lost, possession is interrupted.

Art. 3465 Interruption of acquisitive prescriptionAcquisitive prescription is ….

Harper v. Willis

What was Harper’s fundamental problem?Harper grazing cattle on property owned by Willis.Harper knew he did not own the property. Evidenced by asking permission.

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He was trying preserve his right to possess. He has been physically possessing the land for many years. His problem was that he did not have intent to possess (art.3424). Not a good faith possessor.

He said that he wanted to become the owner but he initially got permission to use the land—so he started out as a precarious possessor, an informal lease.

Liner v. LLE

Liner claimed some property between 2 bayous. LLE had title to bayou including Liner’s claimed property. Lanier maintained the property, trapped on it and camped on it. LLE removed his property stakes etc but never tried to force him to leave. Finally LLE came out w/ deputies and removed stakes. Liner then hired lawyer to pursue possessory action. Liner finally won.

Liner filed action immediately upon interruption of his property. That’s what won the case for him.

Disturbance – possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year

Meaning of “quietly and without interruption” – Art. 3658(2) – not a literal interpretation; stands for whether he lost possession of property.

Evans v. Dunn – possessory action

Court wanted to see more definite actions of possession he could have torn down the fence; cut a hole, etc.

He lost right to possess due to interruption; he did not show he had possessed the property before the alleged disturbance

Δ and π arguing over a strip of land 36’ wide and 210’ feet long. Δ owned the property but π had used it for several years. Δ built a fence around it and π did not challenge this for more than a year. Court ruled that year had passed and π (possessor) lost possession. Clandestine Possession.

3441 transfer of possession - possession is transferable by universal title or by particular title.

3442 Tacking of possession – possession of the transferor is tacked to that of the transferee if there has been no interruption of possession.

3443 presumption of continuity of possession – 1 who proves that he had possession at different times is presumed to possession during the interim.

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3435 Possession that is violent, clandestine, discontinuous, or equivocal has no legal effect.

3436 Definitionsa. violent – when acquired or maintained by violent acts.b. clandestine when not open or public.c. discontinuous when it is not exercised at regular intervalsd. equivocal ambiguity as to the intent of the possessor to own the thing.

3437 Precarious possession - exercise of possession over a thing w/ the permission of or on behalf of the owner or possessor is precarious possession.

3438 Presumption of precariousness – pre. poss., such as a lessee or a depositary is presumed to possess for another although the may intend to possess for himself.

3439 Termination of precarious possession – co-owner or his universal successor commences to posses for himself when he demonstrates this intent by overt an unambiguous acts sufficient to give notice to co-owner.

3440 Protection of precarious possession – when there is a disturbance of possession the possessory action is available to a precarious possessor, such as a lessee or depositary, against anyone except the person for whom he possesses.

Good faith possessor – would need act of translative ownership.Bad faith possessor – person must intend to possess as owner.Look at 493.

Falgoust v. Innes

P tries to evict Innes because he’s leaving daughter; built gas station; no recordationD says – 5 year oral contract but court said No – can’t really prove it

Timely possessory action – a little less than a yearHe’s occupied her land and interrupting her ability to use it – interruption

Is Innes?

GFP? No act of translative ownership – Art. 487BFP? No. Does not intend to possess to own; never possessed for himself – Art. 497

He was precarious possessor – merely using property – Art. 493Therefore, not a possessor at all.

IRONY: If Innes were BFP, Art. 497 – Falgoust would be better off because she could have kept gas station. Owner is in position to impose restrictions on whose responsibility is what.

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Antulovich v. Whitley

How did they prove corp possession?

D selling timber; planted treesMarked line on property every 3-5 yearsRural wooded land, generally undeveloped landCourt considered purpose of landWhat “reasonable owner” would do is circumstantial given the nature of land and purpose

What kinds of activities are sufficient to constitute actual corporeal possession and enclosure?

What kind of standard do we apply in measuring such activities?

Efficiency/Personhood Model – A person possessing a thing places a value on it.

Administrative Model

Limitations Model – Put down rules on person not taking care of his property.

Development Model –

Ten Year Acquisitive Prescription

Art. 3475 Corporeal possession, or civil possession preceded by corporeal possession, of ten years. Must be continuous, uninterrupted, peaceable, public and unequivocal possession.

Good Faith 3480 Possessor reasonable believes in light of objective circumstances, which he is the owner of the thing, he posses. Art. 3480.

3481 Good Faith presumed – Neither error of law or of fact defeats presumption.

3482 Need only exist at commencement of possession.

Good Faith 2 step approach

1. Did possessor subjectively or actually believe that ancestor was owner?Presumption of good faith usually means yes

2. Was possessor’s belief reasonable in light of objective circumstances?

Art. 3483 - Just Title Juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. Must be written, valid in form and filed for registry.

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Art 3484 – Thing must be susceptible of prescription.

3485 All private things are susceptible of prescription, unless excluded by legislative.

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