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CIVIL LAW PROPERTY LAW STUDENT NOTES

law of property is the relationship people have to things and right to things
rights to physical use - usus
rights to make money without getting rid of it -lease-fruits of the revenues- fructus
rights to alter destroy sell- abusus
usufruct- usufructuary has rights to usus and fructus but not to sell or alter (abusus)

immovable property
-tracts of land with component parts
-component parts of tracts of land - buildings other constructions permanently attached to the ground, timber, crops,
-buildings and timber are separate immovables when they belong to a person other then the owner of the ground
-things incorporated into an immovable = constructions so as to become an intergral part of it, building and building materials are its component parts
-component parts- things permanently attached to a building or other construction such as plumbing. things are considered permanently attached if they cannot be removed without substantial damage to themselves or the immovable to which they are attached.
-immovable by declaration= owner of property may declare that machinery, appliances and equipment owned by him and placed on the immovable other then his private residence for it service and improvement are deemed to be its component parts. declaration shall be filed for registry in the conveyance records of the parish.
-deimmobilization= component parts of an immovable so damaged or deteriorated that they can no longer be serve the use of lands or buildings are deimmobilized. the owner can deimmobilize the component parts of an immovable by an act translative of ownership and delivery to acquires in good faith, in absence of rights of third parties the owner may deimmobiliz things by detachment

obligee- right to performance “right”
obligor- give performance “duty”
right of servitude- right to use a thing, do what you want to it, right less then ownership
to have a transfer you must have authentic act.-
art 1839 a transfer of immovable property must be made by authentic act or by act under private signature. nevertheless an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.
an instrument involving immovables property shall have affect against 3rd persons only from the time it is filed for registry in the parish where the property is located
SERVITUDE 2 types
personal- a charge on the thing for the benefit of a person art 534
2) predial- a charge on a servient estate for the benefit of a dominant estate. art646 (in favor of other property)
Servient- burdened land
dominant- benefit land
predial servitudes- art 651
#

#Possession
1. Definition: The detention or enjoyment of a corporeal thing, movable or immovable, that one holds or exercises by himself or by another who keeps or exercises it in his name. (3421)

2. To acquire possession one must intend to possess as owner and must take corporeal possession of the thing
a. Intent to possess as owner
i. One is presumed to intend to possess as owner

ii. One may acquire possession through another who takes it for him and in his name
The person taking possession must intend to do so for another

iii. Once acquired, possession is retained by the intent (which is presumed unless rebutted) to possess as owner even if the possessor ceases to possess corporeally. This is civil possession (ie. Payment of taxes or execution of a lease)

b. Corporeal possession of the thing
i. corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. (Residing in a house cultivating land or using a movable)

ii. The possession should be consistent with the type of property (look at the type of property (camp ground, swamp land, home in the quarter)

3. Precarious possession

i. The exercise of possession over a thing w/the permission of or on behalf of the owner or possessor (lessee or depositary) (3437). The corporeal possession of my property can be fulfilled by a precarious possessor on my behalf.

ii. Lacking the intent to possess for oneself as owner; you must terminate precariousness to become a possessor - terminate by giving notice

4. Constructive possession
a. One who possesses a part of an immovable by virtue of a title is deemed to have constructive possession w/in the limits of his title. In absence of title, one has possession only of the area he actually possesses

i. One may have constructive possession by virtue of a defective title

ii. One may have constructive possession regardless of good or bad faith
(a) One who possess by virtue of a title in bad faith may prescribe in 30 years on proof that he had possession of a part, and therefore constructive possession of the whole w/in the limits of his title

5. Civil possession
a. Once you have acquired possession. You can retain possession by intention to possess w/o actual possession.

i. Once you physically possessed w/intention to possess you can physically leave temporarily and not lose all the rights of possession. Once you discontinue physical possession and you no longer intend to possess you have abandoned possession

6. Loss of possession (3434)
a. Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation

i. In case of eviction the right to possess is lost if the possessor does not recover possession w/in a year of eviction

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

7. The law gives a possessor the possibility of 4 different rights (The 1st come immediately and the 2nd two come in time)
a. Reimbursement for expenses and improvements
b. Right to retain fruits that have been gathered by him.
c. After 1 year - possessor gets the legal right to possess which allows him to bring a cause of action against.
i. Possessory action
ii. Petitory action
d. Right of ownership - through acquisitive prescription

8. Reimbursement for expenses (527-529)
a. The evicted possessor, whether is good or in bad faith, is entitled to recover from the owner compensation for necessary expenses incurred for the preservation of the thing and for the discharge of private or public burdens. He is not entitled to recover expenses for ordinary maintenance (527)

i. Necessary expenses = property taxes and assessments, indispensable (crucial) repairs and maintenance costs, insurance costs

b. An evicted possessor in good faith is entitled to recover from the owner his useful expenses to the extent that they have enhanced the value of the thing (528)

c. The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements which he is entitled to claim

9. Reimbursement for improvements (496 - 497)

a. Good Faith Possessor (496)

i. When constructions, plantings or works are made by a possessor in good faith, the owner of the immovable may not demand their demolition and removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship, or their current value or the enhanced value of the immovable (also applies to co-owner is possession who makes improvements w/o consent)

b. Bad Faith Possessor(497)

i. When constructions, plantings or works are made by a bad faith possessor, the owner of the immovable may keep them or he may demand their demolition and removal at the expense of the possessor and in addition may demand damages for the injury that he may have sustained. (This article is referring to Buildings, other constructions permanently attached to the ground, standing timber, unharvested crops or ungathered fruits

(a) All improvements made by a possessor in bad faith on another’s immovable belong to the owner of the immovable

ii. If he does not demand demolition and removal, he is bound to pay at his option either the current value of the materials and of the workmanship of the separable improvements that he has kept or the enhanced value of the immovable (same for co-ownership when co-owner builds something w/o consent)

(a) separable improvements are those that do not become merged with the soil and remain distinguishable as individual works such as houses, barns, carports; new constructions subject to accession

(b) Inseparable improvements are those that become permanently merged with the soil and lose their identity as separate works, such as clearing, draining, filling in, digging irrigation ditches, building levees, reservoirs, or lakes; useful expenditures.

i. Although a bad faith possessor may not claim compensation from the landowner for inseparable improvements, he may set-off the value of these improvements against any claim that the landowner may have against him for the return of fruits

c. The possessor, whether in good or in bad faith, may retain possession of the thing until he is reimbursed for expenses and improvements which he is entitled to claim

10. Right to retain fruits & products that have been gathered (486 & 488)

a. Fruits - does not diminish substance of the thing (rents, apples)
Fruits Gathered Ungathered Good Faith Keep Profits Earned Reimbursed for expenses but don’t get profits Bad Faith Return Profits and Reimbursed for expenses NONE

b. Products - timber, minerals; diminishes substance of the thing

Products Gathered Ungathered Good Faith Return Profits and Reimbursed for expenses NONE Bad Faith Return Profits NO reimbursed expenses NONE

11. Legal Right to Possess

a. Hierarhy
1) First litigate the right of possession. If you will they the unsuccessful ? will be deemed to not have the legal right to possess

2) The unsuccessful ? will have to bring a petitory action

(a) if you start with a petitory action you can’t go back and assert a possessory action

b. Possessory action
i. Possessory action is a procedural element only available to those with a legal right to possess. It is a possessor asserting that he is in possession (physical possession & intent to possess)
(a) a possessory action primarily arises out of an eviction however one can bring a possessory action if it is a mere disturbance.

i. The right to claim damages under mere disturbance prescribes in 1 year; possession is not interrupted w/a mere disturbance.

ii. If you don’t make a possessory action w/in 1 year from the time you have been evicted the evictor obtains the legal right to possess

ii. What are you proving if you bring a possessory action
(a) you had possession when disturbed or evicted
(b) you have the legal right to possess b/c you have been there over 1 year
(c) disturbance in fact
i. Physical interference of your rights
(a) Disturbance in law on the other hand does not disturb physical possession it is simply someone claiming you property has no real title
(d) It has been less than 1 year since the disturbance or eviction

c. Petitory action
i. Brought by someone who claims ownership against another in possession or who is asserting ownership adversely against another.

ii. If you bring a petitory action first you are admitting that you are not in possession and it is easier for the ? to win petitory aciton

iii. Petitory p, is not in possession

iv. If the court finds the other party in possession in the possessory action when the p brings the petitory action the p must prove that he acquired ownership from a previous owner or by acquisitive prescription.

(a) Proving ownership was acquired from a previous owner is a difficult task b/c you have to prove that person who conveyed title to him was a true owner & the previous owner was true owner & so on. When does it stop? Title must be good against the world

v. If the court finds that the other party is not in possession the p in a petitory action must prove a better title than the ?. Burden of proof is on the p.

(a) If neither is in possession then each traces to common owner.

12. Acquisitive prescription
a. A good way to cure titles

#

#Acquisitive Prescription (3473, 3486, 3489)
A. The acquisition of ownership or other real rights through possession or use for a statuatory period.

1. Other real rights include apparent predial servitudes

B. Ownership can not be lost by non-use. The only way ownership can be lost is through acquisitive prescription

C. The primary utility of acquisitive prescription is that it clears up defects or flaws.

D. Things to consider:
1. Type of property: Moveable or immoveable
2. Possessor: Good faith or bad faith

i. Movable good faith = 3 years
ii. Movable bad faith = 10 years
iii. Immovable good faith = 10 years
iv. Immovable bad faith = 30 years

E. (3475) The requisites for acquisitive prescription of 10 years are: possession for 10 years, good faith, just title, susceptibility to prescription. Good faith & just title are distinct requirements.

1. Possession for 10 years
i. One must have the intent to possess as owner and take corporeal possession
(a) There is a presumption that someone who corporeally detains a thing intends to possess as owner

(b) Corporeal possession - the exercise of physical acts of use, detention, or enjoyment over a thing. The quality of corporeal possession is governed by the use for which the land is destined. (Swampland - logging operation)

(c) Civil possession
(1) Once possession is acquired it can be maintained by the intent to possess as owner even though the corporeal possession has ceased

(d) Constructive possession - occurs only when one exercises corporeal possession by virtue of a title. He who corporeally possesses part of an immovable by virtue of a title is deemed to possess w/in the limits of his title (3426)

2. Good faith
i. For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is the owner of the thing he possesses (3480)
(a) He must reasonably believe he is the owner of the thing (we don’t reward for ignorance the belief must be reasonable)
(b) Objective factors: reasonableness of price, whether property is sold w/o warranty of title
(1) quitclaim deed does not automatically destroy presumption of good faith. A quitclaim is a transfer of all the rights of the property w/o warranty

ii. Good faith is presumed. Neither error of fact or error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know that he is not the owner of the thing he possesses

(a) An acquirer of an immovable property is not bound to search the public records unless he knows facts sufficient to excite inquiry.
(1) The acquirer is charged w/knowledge that a reasonable person would acquire from the public records, and the presumption of good faith may be rebutted

(2) If the acquirer does do a title search and they do not find a title but there should be one filed. The acquirer is still in good faith

iii. It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of 10 years. (If 2 days into possession a neighbor comes by and says hey that’s Jim’s land you are still good faith b/c you were in good faith at commencement. However if you sell the property in 9 years and the guy you sell it to know’s Jim really owns it they he is in bad faith. However if your son buys the land from you after 9 years - he inherits your good faith regardless of what he knows b/c he is a universal successor)

iv. If X is a precarious possessor and he transfers possession to a particular successor prescription runs in his favor from the commencement of his possession. (3479) However in this situation tacking is not permitted b/c previous possessor was precarious.

(a) However if X the precarious possessor transfers ownership to his children who are universal successors they inherit the precariousness even if they thought their father was owner. They inherit X’s status no matter what it is.

v. If he does not have a title it is hard to say that a party is acting in good faith

3. Just title

i. A just title is a juridical act, such as a sale, exchange or donation, sufficient to transfer ownership or another real right. (3483)
(a) The act must be written
(b) The act must be in valid form
(c) The act must be filed for registry in the conveyance records of the parish in which the immovable is situated

(1) Until 1982 one did not have to record their title to have just title

ii. A just title to an undivided interest in an immovable is such only as to the interest transferred (just title only is just to what it purports to convey)
(a) When a co-owner of an immovable transfers only his undivided part to a 3rd person, the transferee acquires only the part of the transferor. Thus even if he possess the entire immovable adversely, he cannot acquire the ownership of the entire immovable by prescription of 10 year

(b) Title purporting to convey an undivided interest is such only as to the interest transferred. If the title is only to an undivided 1/4 interest, it is only just for the 1/4 interest. Just title has to do with what the title purports on its fact.

iii. If just title were good title we would not be arguing over this.
(a) Flaw in the title prevents the just title from being good

iv. You don’t go back and analyze the chain of titles. You only look at the instrument purporting to convey ownership of this property.

v. A person may transfer to another whatever rights to a thing he may then have, w/o warranting the existence of any such rights. In such a case the transferor does not owe restitution of the price to the transferee in case of eviction. (2502) Quit claim is just title for purposes of acquisitive prescriptio and does not give rise to a presumption of bad faith. Quit claim showed bad faith in Malone v. Fowler

vi. A universal successor has no title of his own. He continues the possession of the deceased who transmitted to him the title that the deceased had.

vii. Constructive possession applies to both the 10 and 30 year prescription. Thus one who possesses by virtue of a just title but in bad faith possesses within the limits of his title. In contrast one who possesses w/o title must porve possession w/in enclosures or inch by inch possession

4. The thing must be susceptible to acquisitive prescription
i. The state of Louisiana is exempt from prescription if the State owns mineral rights - no one can acquire those through acquisitive prescription. No prescription applies to the state - liberative or acquisitive

5. Tacking
i. Possession is transferable by universal title or by particular title (3441)
(a) Whatever rights have accrued on account of the transferor is transferred to the transferee

ii. The possession of transferor is tacked to that of the transferee if there has been no interruption of possession (3442)
A - Good faith 9 years transfers to B
B - Good faith 1 year possession
Ownership 10 years

iii. Philips - allowed ? ownership after 10 years of encroaching land b/c he visibly possessed even though it was not in his title.
(a) Louisiana has a “pure race” system: to bind the world you must record. Nothing substitutes for recordation

iv. Bartlett b/c of public policy prevents a particular successor from borrowing good faith possession. If purchaser is in bad faith and is purchasing from a good faith possessor, bad faith possessor can only get acquisitive prescription after 30 years (can tack the good faith possessors possession to that. (However pg 1200 of the code Art 936 implies that effect 1999 will overrule Barlett. A particular possession can continue the legacy w/ or w/o good faith )
1969 A good faith (9year possession)
1978 A to B bad faith (20 year possession)
1998 B is prevented from 10 year prescription b/c he is in bad faith however he can tack the 9 years to his 20 = 29 years for 30 year prescription

v. You can go back in the chain of title as long as there is a juridical link purporting conveyance of ownership.

(a) Just title is a juridical link
(1) Just title - conveys what it purports to convey on its face

(2) The just title must be in writing but it does not have to be recorded for juridical link purposes

vi. A particular successor of a precarious possessor who takes possession under an act translative of ownership for himself, and prescription runs in his favor from the commencement of his possession. He is not allowed to tack the precarious possessor’s possession

(a) converting precarious to adverse (3478)
(1) Lessee - Give actual notice
(2) Co-owner - overt and unambiguous acts sufficient to give notice to his co-owners

6. Special tacking rules for boundary tacking

i. When a party proves acquisitive prescription the boundary shall be fixed according to limits established by prescription rather that titles. If a party and his ancestors in title possessed for 30 years w/o interruption, w/in visible bounds, more land than their title called for, the boundary shall be fixed along these bounds.

(a) If a party possessed for 30 years w/o interruption - openly possessed more than what the title conveyed and more than what you accestors in title conveyed = juridical link

(1) You must have title to adjacent land and
(2) You must possess w/in visible bounds

ii. Constructive possession - possession by title doctrine allows you to sustain possession b/c you have a title and have corporeally possessed in the part of the title. You possess all of the land in the title even if you corporeally possessed only a portion.

(a) For purposes of acquisitive prescription w/o title. Possession extends only to the part that has actually been possessed you don’t get the benefit of constructive possession (3487) So when you encroach w/o title you must actually possess.

iii. Green acre encroaches a fence on Black acres land - which is included in Black acres title. Green acre had a survey done and the survey said his land was encroached 50ft. On Blackacres land. It is not in Greenacres title but for 20 years Greenacre believed the encroachment was his land. Does Greenacre have ownership of the encroaching land after 20 years? No b/c he does not have title. Even though he was in good faith, just title is an independant requirement for a good faith possession. Greenacre after 20 years purports to sell to X. His title however does not include the strip that is on Blackacre. However the title is enough of a juridical act to allow X to tack Greenacres possession and the encroaching land

7. 30 year acquisitive prescription
i. Ownership and other real rights in immovables may be acquired by the prescription of 30 years w/o the need of just title or possession in good faith. (3486)

ii. To tack there must be a juridical link - just title

iii. Bartlett does not interfere w/ tacking bad faith - anytime there has been possession with a juridical link for 30 years you have ownership
(a) A (10years) - B (10years) - C (10 years) = 30 years D owner.

#

#VI. Co-ownership (797 & 543)

A. Definition: The ownership of the same thing by two or more persons is co-ownership or ownership in indivision. There is a presumption that the shares of all co-owners are equal.

B. Rights and duties of co-owners

1. If fruits or products are produced by one co-owner, then all co-owners share the fruits and products of the co-owned thing in proportion to their ownership after deduction of the cost of production.(798)

2. Co-owners may use and manage the co-owned thing according to their agreement (801)

3. Except as otherwise provide in 801 a co-owner is entitled to use the thing according to its destination (historical use), but he can not prevent another co-owner from making such use of it.
LeBlanc v. Scurto - guy tried to use the alley that wasn’t consistent w/historical use

a. If 1 co-owner has 2/3 ownership and 1 has 1/3 ownership they still have equal dibs on use. Either can assert use on the whole thing. The fractional shares is going to affect the right to fruits.

b. You can’t prevent a co-owner from using the property according to its historical use. You are limited to using it relative to the historical use - so you can’t go and make changes that are not consistent w/historical use

c. As against third persons, a co-owner has the right to use and enjoy the thing as if he were the sole owner. (ie. A co-owner may alone take all the preservation steps and institute suits against trespassers)

d. If co-owners can’t agree on use and management court will step in to determine this. If there is an agreement the crt may just enforce the agreement. If it can’t agree partition is available.(803)

e. If one co-owner created fruits the other co-owner shares in the fruits but expenses must be deducted from revenue. However if one co-owner unilaterally tries to create fruits & doesn’t but has expenses tough he takes the loss.

f. (806) A co-owner who on account of the thing held in indivision is entitled to reimbursement for expenses from other co-owners in proportion to their share if he has incurred:
1) necessary expenses
2) expenses for ordinary maintenance and repairs
3) or necessary management expenses paid to a third person
If the co-owner who incurred the expenses had the enjoyment of the thing held in indivision, his reimbursement from the other co-owners shall be reduced in proportion to the value of the enjoyment

g. Alterations and improvements should not be initiated w/o consent of all the co-owners. If you make improvements w/o consent then reimbursement is dependant upon whether improvements are consistent with the property and enhance the value of the property.

i No consent but enhancement to the property (496) - there demolition may not be demanded. And the co-owners are bound to keep them and pay either the cost of the materials and workmanship or the current value or the enhanced value of the immovable.

i. No consent and no enhancement to the property (497) - co-owners may keep them or demand their removal at the expense of the party who is possessing and may collect damages for the injury they may have sustained. If no removal is demanded then the co-owners must pay the current value of materials and workmanship of the separate improvements or the enhanced value of the immovable

4. A co-owner w/o consent may take necessary steps for the preservation of the thing

5. When partition is not available and the co-owners cannot agree on the use or management of the co-owned thing, a court may determine its use or management (803)

6. A co-owner has freedom of disposition (lease alienation or encumbrance) as regards his share of the co-owned thing

7. All the co-owners must consent to a lease, alienation, encumbrance, substantial alteration, or substantial improvement of the entire co-owned thing (804 & 805)

C. Partition

1. No one can be compelled to hold property in indivision w/another person unless the contrary has been agreed to or is provided for by law
a. The remedy is to provoke a partition of the property

b. The action for partition is imprescriptible (no liberative prescription

2. Exclusion of partition

a. Partition can be excluded by agreement for up to 15 years

b. If the use of the thing held in indivision is indispensible for the enjoyment of another thing owned by one of the co-owners, partition is excluded (808)

3. Modes of partition

a. Voluntary partition - co-owners agree on the mode of partition; in the absence of agreement, a co-owner may demand juridical partition

b. Juridical partition

i. Partition in kind: if the thing can be divided into lots of nearly equal value and the value of the individual lots is not significantly lower than the value of the entire property, the court shall decree a partition in kind. Expert makes a proposed division and the parties draw lots.

ii. Partition by licitation or by private sale: When the thing can’t be partitioned in kind, then it is partitioned by licitation (public auction) or by private sale and the proceeds distributed to the co-owners

#

#A. Ownership
(477) ownership is the right that confers on a person or juridical entity direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, dispose of it within the limits and under the conditions established by law

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

(490) Unless otherwise provided by law, the ownership of a tract of land carries w/it the ownership of everything that is directly above or under it. The owner may make works on, above, or below the land as he pleases, and draw all advantages that accrue from them, unless he is restrained by law or rights of others

1. Ownership rights divided into three categories
a. Usus: the right to use and enjoy the property
b. Fructus: the right to the fruits produced from the property
c. Abusus: the right to alienate and encumber the property

2. Full ownership includes all three elements

a. Servitudes are less than full ownership and thus include less than all three elements

b. Predial Servitude: charge on a thing for the benefit of an estate
Personal Servitude: charge on a thing for the benefit of a person

3. Is the servitude personal or predial?
a. In cases of doubt, the following rules determine whether a servitude is personal or predial

b. If the act creating the servitude does not state that it is for the benefit of another estate or for the benefit of a particular person, then:

i. If an advantage is conferred to an estate, the servitude is presumed predial

ii. If a right is granted in favor of a person, the servitude is not considered predial unless it is acquired by an owner of an estate as owner for oneself, one’s heirs, and assigns.

II. Personal servitudes of right of use, habitation and usufruct
A. Right of Use (639 - 645)
1. Right of use confers in favor of a person or legal entity a specified use of an estate less than full enjoyment (same rules as predial except in favor of a person)

2. Distinguishing right of use from usufruct: if the act purporting to create a right of use exhausts the utility of the property, then it is a usufruct rather than a right of use.

3. A right of use is transferable (alienable) unless stipulated otherwise

4. It does not terminate upon death unless stipulated otherwise

5. Right of use is governed by rules of usufruct and predial servitude to the extent that they are compatible with a right of use

B. Right of habitation (630 - 638)

a. A non-transferable real right to dwell in the house of another. Prudent administrator is the standard of care

C. Usufruct
1. Usufruct: Real right of limited duration on the property of another. Features vary with the nature of the things subject to it as consumables or nonconsumable

a. Right to use the property and enjoy its fruits

b. Usufruct may be established by juridical act (conventional) either inter vivos (contract) or mortis causa (will) or operation of the law (legal)(544)
i. Examples of legal usufructs include usufruct conferred to a surviving spouse (890) or in favor of parents over the property of minor children (223)

c. Usufruct may be established in favor of a natural person or legal entity

d. Usufruct may be established for a term or under a condition, and subject to any modification consistent with the nature of the usufruct.

e. Usufruct is an incorporeal thing. It is moveable or immovable according to the nature of the thing upon which the right exists

f. Usufruct is susceptible to division, b/c 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 (541). (The termination of one usufructuary’s interest results in the accrual of that interest in favor of the remaining usufructuaries)

h. The naked ownership may be partitioned subject to the rights of the usufructuary(542)

i. When property is held in 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 (Ex: Dad dies, no will, wife is Ѕ owner and Ѕ usufruct while child is naked owner. So mom as a Ѕ owner or co-owner may demand partition of the property in kind or by licitation) (543)

However a person having a share in naked ownership only or in usufruct only does not have this right, unless a naked owner and a usufructuary jointly demand partition. Their combined shares shall be deemed full ownership (543).

j. Usufruct may be established, through juridical act, in favor of successive usufructuaries (546)

k. When the usufruct is established in favor of several usufructuaries, the termination of the interest of one usufructuary inures to the benefit of those remaining, unless the grantor has expressly provided otherwise (547)

l. The features of the right hinge on whether the usufruct is over a consumable thing or over a nonconsumable thing.

2. Usufruct over consumable things (536, 538)

a. Consumable things are those that cannot be used w/o being expended or consumed, or w/o their substance being changed, such as money, harvested agricultural products, stocks of merchandise, foodstuffs and beverages.

b. The usufructuary becomes the owner of the consumable. Usufructuary may consume, alienate, encumber the consumable as he sees fit

c. However at the termination of the usufruct (i) He must either pay the naked owner the value the consumed items were at commencement or (ii) replace them with like things of the same quality and quantity.

3. Usufruct over non-consumable things (537 & 539)

a. Non-consumables are things that can be used w/o their substance being altered even though natural deterioration may gradually occur. They are not destroyed with the very first use ie. Shares of stock, land, house, animals, furniture, appliances. (537)

b. The usufructuary has the right to use and enjoy the property but cannot alienate (no abusus) it without the naked owners agreement. Usufructuary has the duty to make use of the property as a prudent administrator and deliver them to the naked owner at the termination of the usufruct (539)

c. The usufructuary of non-consumables “has the right to possess them and to derive the utility, profits (fruits) and advantage that they may produce, under the obligation of preserving their substance. (539)

d. Usufructuary may lease, alienate or encumber his right (usus & fructus not abusus). All such contracts cease at the end of the usufruct. He is responsible for the abuse that the person w/whom he has contracted makes of the property

i. If lessee did not know usufructuary was not owner lessee still ends buy the naked owner may have to indemnify

e. If the usufructuary is not sure whether it is a consumable or non-consumable item he should preserve the original intent of the usufruct (ie stock as an investment or liquid asset or a CD investment? Nonconsumable or liquid? Consumable)

4. Rights of the usufructuary over non-consumables

a. Right to all fruits: fruits are things that are produced by or derived from another thing w/o diminution of its substance.
i. Rights to fruits begin on the effective date of the usufruct (when dad dies)
ii. You generally have to take some action to create a fruit.

b. Kinds of fruits:
i. Natural fruits are products of the earth or animals
(1) Usufructuary acquires the ownership of natural fruits severed during the existence of the usufruct. (Annual rental = $12,000 payable Dec 31 in corn. Commencement of usufruct is April 1. Usufruct gets all the corn)
(2) Natural fruits not severed at the end of the usufruct belong to the naked owner. Puppies not born at the end of the usufructuary belong to the naked owner.

ii. Civil fruits are revenues derived from a thing by operation of the law or by reason of a juridical act: rentals, interest, and certain corporate distributions.

iii. The usufructuary acquires the ownership of civil fruits accruing during the existence of the usufruct. Civil fruits accrue day by day.

(1) Civil fruits are calculated day by day
(Annual rental = $12,000 payable in cash @ last calender day of the year. Commencement of usufruct is April 1. Usufructuary gets $9,000. The $3,000 goes back into the estate)

c. Usufructuary does not have rights to products (488) - product is derived from a thing which results in dimunation of the thing
i. So, production of oil & gas does not produce fruits. B/C a person can’t make an act to create oil & gas. Person can make an act to create cotton. Most fruits are not spontaneously generated. Usually takes act of a man. The renewability is the issue. Man can’t do something to regenerate or produce more oil.

ii. The right of usufructuary and the naked owner in mines & oil is goverend by the mineral code

(1) Spousel have all the rights to mines that have and have not been worked. However if the spouse wants to create a new Mineral lease on the land he/she must get the naked owners permission when she does she has all rights to that lease

(2) Open Mines Doctrine: If the creator of the usufruct has already worked a mine the usufructuary is entitled to use and enjoy the rights in those minerals.

iii. In general trees are also considered products and thus the usufructuary has no right to cut them down there are exceptions to this rule

(1) The usufructuary may cut trees growing on the land of which he has the usufruct and take stones, sand and other materials from it, but only for his use or for the improvement or cultivation of the land (560)

(2) When the usufruct includes timberlands, the usufructuary is bound to manage them as a prudent administrator. The proceeds of the timber operations that are derived from proper management of timberlands belong to the usufructuary (562)

(a) However if the land historically was not used for timberlands and the trees are mature. A prudent administrator my obtain expert opinion that the land would be best suited as a tree farm. The revenues from the first cut of the trees goes to the estate b/c those are product proceeds however a portion of those proceeds can go back into the investment of creating a tree farm. Thereafter the proceeds belong to the usufructuary. (Kennedy Case - only can clear cut if this is prudent, trees were mature so it was prudent)

d. Usufructuary rights to improvements and alterations
The usufructuary 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 fails or refuses to gibe his consent, the usufructuary may, after notice to the naked owner and with approval of court, make at his cost those improvements and alterations that a prudent administrator would make.(558)
i. If usufructuary makes changes without consent he is subjecting himself to liability. Naked owner can make you liable for not acting as a prudent administrator.

ii. Standard of care: The usufructuary is answerable for losses resulting from his fraud, default, or neglect (576)

(a) Thus the usufructuary is liable even for slight fault, namely, he must exercise the diligence that an attentive and careful man exercises in the management of his own affairs.

(b) Usufructuary is answerable for losses. If the value of the property is less with a pool the usufructuary put in.

(c) Usufructuary does not have to possess for himself however he is answerable for damages caused by third persons.

iii. The usufructuary may remove all improvements he has made, subject to the obligation of restoring the property to its former condition. He may not claim compensation from the owner for improvements that he does not remove or that cannot be removed (601)

(a) The usufructuary may set off damages due to the owner for the destruction or deterioration of the property subject to the usufruct the value of improvements that cannot be removed (602)

iv. Usufructuary is not liable for changes he made with out consent, as long as the property is in the same condition it was at commencement.

v. Usufructuary is not liable for the properties depreciation if he was a prudent manager. The naked owner has to take on the loss at termination

e. Usufructuaries responsibility to ordinary repairs and maintenance.

i. Usufructuary is responsible for ordinary maintenance and repairs for keeping the property in good order, whether the need for these repairs arises from accident, from the normal use of the things, or from his fault or neglect (577) (ex. Awning permitted to decay or woodshed torn down)

ii. The naked owner is responsible for extraordinary repairs, unless they have become necessary as a result of the usufructuary’s fault or neglect in which case the usufructuary is bound to make them at his cost (577)

(a) extraordinary repairs are those for the reconstruction of the whole or of a substantial part of the property subject to the usufruct. All others are ordinary repairs. (578) (ex: repairs to principal walls, vaults, beams, repairs to the roof, to a levee, repairs to dikes, supporting walls, walls of enclosure)

(b) Usufructuary did not change oil on the car - ended up needing a new engine. Normally this would be an extraordinary repair, however, they became necessary b/c of usufructuary’s fault - usufructuary responsible.

iii. During the existence of the usufruct, the naked owner may compel the usufructuary to make repairs for which the usufructuary is responsible. (579)

The ususfructuary may not compel the naked owner to make the extraordinary repairs for which the owner is responsible. If the naked owner refuses to make them, the usufructuary may do so, and he shall be reimbursed w/o interest by the naked owner @ the end of the usufruct. (579)

iv. The usufructuary is answerable for all expenses that became necessary for the preservation and use of the property after the commencement of the usufruct. (581)

v. If usufruct commences and befor the usufructuary goes into possession the naked owner incurs necessary expenses that the usufructuary is responsible for he may retain possession until usufructuary pays him (580)

vi. Usufructuary may reject the gift in a succession if it costs too much to fix it or repair it; nee court order (582)

vii. Neither the usufructuary nor the naked owner is bound to restore the property that has been totally destroyed through the accident or b/c of age. (583)

If the naked owner elects to restore the property to make extraordinary repairs he must do so in reasonable time least inconvenient to usufruct

viii. Usufructuary is bound to pay the annual charges imposed during his enjoyment of the property subject to the usufruct, such as property taxes. (584)

ix. The usufructuary is bound to pay the extraordinary charges that may be imposed during the existence of the usufruct. If these charges are of a nature to increase the value of the property subject to usufruct the naked owner shall reimburse the usufructuary at the end of the usufruct only for capital expended. (585) ie paving assessments

f. Usufructuary’s right to disposal of nonconsumable - exception (568)

i. Usufructuary does not have the right to dispose of nonconsumable things unless the right has been expressly granted to him.

(a). Nevertheless he may dispose of corporeal movables that are gradually and substantially impaired by use, wear, or decay, such as equipment, appliances, and vehicles, provided that he acts as a prudent administrator.

(b) Upon disposition the usufruct is converted into a usufruct of money, and the usufructuary 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. (Taxes are paid by the proceeds of the sale

ii. If the usufructuary has not disposed of corporeal movables that are by their nature impaired by use, wear, decay, he is bound to restore them to the owner in the state in which they may be at the end of the usufruct

(a) The usufructuary is relieved of this obligation if the things are entirely worn out by normal use, wear or decay. (569)

g. When can a non-consumable be converted?

i (568) voluntary sale - corporeal immovable
ii (614) involuntary sale - when any loss, extinction or destruction of property subject to usufruct is attributable to the fault of a third person, the usufruct does not terminate but attaches to any claim for damages and the proceeds therefrom
iii. (615) - Change of form of property(expropriation) - When property subject to usufruct is converted into money or other property w/o an act of the usufructuary, as in a case of expropriation (gov’t buys land, corporation liquidates) the usufruct does not terminate but attaches to the money
iv. (616) Sale by agreement - When property is sold b/c of partition or by agreement of owner & usufruct the usufruct attaches to the proceeds of the sale
v. (617) Proceeds of insurance - When proceeds of insurance are due on account of loss, extinction or destruction, the usufruct attaches to the proceeds. If the usufructuary or naked owner is insured separately for their interest only, the proceeds belong to the insured party

vi. (618) In cases governed by 614, 615, 616, and 617, the naked owner may demand w/in one year from the receipt of the proceeds by the usufructuary, that the money be safely invested subject to the right of the ususfructuary

(a) Security may be dispensed w/by the grantor of the usufruct or by operation of the law. Legal usufructuaries and sellers or donors of property under reservation of usufruct are not required to give security (573)
(1) Surviving spouses are not required to give security

g. Stock is a non-consumable and therefore can not be sold.

i. The usufructuary is responsible to the naked owner for the value of the stock at termination. (Commencement AT & T $10 /share @ 100 shares = $1000. Usufructuary sold AT & T for Reabock termination is worth $20/share @ 100 shares = $2000. Usufructuary is responsible for the value of AT & T stock at termination. If AT &T is worth $30/share usufructuary owes naked owner that amount. However if AT &T is worth $5/share. Ususfructuary should pay the profits he reaped from selling the stock b/c he should not benefit from his wrong - doing.

5. Termination of usufruct.

a. The usufruct of nonconsumables terminates by the permanent and total loss, extinction, or destruction through accident or decay of the property subject to the usufruct (613)

b. The right of the usufruct expires upon the death of the usufructuary (607)

c. A usufruct established in favor of a legal entity other than a natural person (608)
i. terminates when the entity ceases to exist or
ii. upon the lapse of 30 years from the date of the commencement of the usufruct

d. A usufruct established for a term or subject to a condition terminates upon the expiration of the term or the happening of the condition (610)

e. Usufructuary is charged to restore or transfer the usufruct to another person, his right terminates when the time for restitution or delivery arrives (610)

f. Prescription of non- use: if you don’t use your right for 10 years your right is extinguished. Those rights go back to the naked owner. Naked owner then gets full ownership.(621)

c. A usufruct may be terminated by the naked owner if the usufructuary commits waste, alienates things w/o authority or abuses his enjoyment in any other manner. (623)

d. Under 623 cases the court may decree that the property be delivered to the naked owner on the condition that he shall pay to the usufructuary a reasonable annuity until the end of the usufruct. The amount of the annuity shall be based on the value of the usufruct.
i. The usufructuary may prevent termination of the usufruct or delivery of the property to the naked owner by giving security.

6. What happens to the consumable or nonconsumable at termination:

a. Consumable: usufructuary has to return the value the consumable was at commencement or similar quantity or quality
inventory of a business is shoes.
Value at commencement was $10/pair. At termination = $15/pair.
Best to replace what the value was at commencement

i. Replace inventory in similar quantity and quality or
ii. Replace what they were worth at commencement
iii. If value went down to $5 per share at termination a smart usufructuary would replace the shoes w/similar quantity and quality.

b. Nonconsumable - usufructuary has to return the thing at termination.

i. If the thing is of greater value then was worth at commencement, the naked owner gets the benefit.
ii. If the value declines, naked owner takes on the loss.
(a) However if the usufructuary has violated his standard of care then he has liability to the value the property would have had at termination.

(b)Upon termination of a usufruct of nonconsumables for a cause other than total and permanent destruction of the property, full ownership is restored. The usufructuary or his heirs are bound to deliver the property to the owner w/its accessories and fruits produced since the termination of the usufruct. (628)

(1) If the property has been lost or deteriorated through the fault of the usufructuary, the owner is entitled to the value the property otherwise would have had at the termination of the usufruct (628)

Classification of Things
A. Thing is the object of a property right; property is the legal relationship

B. 3 different ways to divide things and having different legal effects; Each classification is done independently. Every thing is classified in each area

1. Susceptibility of ownership
i. Rules of law are going to be different for things that can be owned and for things that can not be owned
(a) Common things
(b) Public things (government)
(c) Private things

2. Susceptibility of movement
i. Immoveable (more rigid rules, formalities, & longer acquisitive prescription)

ii. Moveable

3. Susceptibility of Touch
i. Corporeal (touched, felt)

ii. Incorporeal (legal rights)

4. Examples: House = private thing, immovable, corporeal
River = public, immovable, corporeal
Stock = incorporeal, movable, private

C. Susceptibility of movement (462 - 475)
1. (475) default article. All things, corporeal or incorporeal that the law does not consider as immovable are movables

2. Immovables
i. What are the requirements for a thing to be immovable?
(a) Subject to writing requirements of Art 1839
(b) Immovable period.
(c) component part
(i) How does something become a component part?
463 item owned by a person who also owns the ground (building, other construction, timber, ungathered crops and fruits) - billboard
465 - don’t need unity of ownership - it is something incorporated into the land or building or other construction so as to become an integral part of it
ie topsoil
466 - Things permanently attached by nature (plumbing heating, cooling, other installations) or removing it would harm it or the thing it is attached to
467 Immovable by declaration (no residence though)

(ii) Sale of an immovable includes component parts (462)
If you put your topsoil on my land whether or not I own the topsoil when I sell my land that topsoil in the eyes of the law are its component parts (465)

ii. It is immovable. PERIOD
(a) Land and their component parts
(b) Buildings
i. PHAC - 1). Size 2) Purpose (inhabited by people) 3.) Cost (high) 4). Permanence (not relative to attachment to the ground just relative to materials the structure is made out of) 5) also considered societal views
(c) Standing Timber
(d) Condo’s

iii. Component Part
(a) At one time the thing had a separate identity; something by itself is immovable but has become connected to an immovable in the eyes of the law and has lost its separate identity

(b) Tracts of land w/ their component parts are immovable
(c) Unity of Ownership: Buildings, other constructions permanently attached to the ground, standing timber and unharvested crops or ungathered fruits of trees are component parts of land when they belong to the owner of the ground (463)

(i) No Unity of ownership: Buildings, standing timber are separate immovables when they belong to a person other than the owner of the ground (464) THEY ARE NOT COMPONENT PARTS

(ii) (469)The transfer or encumbrance of an immovable includes its component parts. Thus if X sells his tract of land and the building is a component part b/c there is unity of ownership the building will transfer w/the land. If the building is not a component part of the land but is a separate immovable the building does not transfer with the land.

(iii) If it is not a component part of the land then it will not transfer with the transfer of the land

(e). Things incorporated into a tract of land, a building, or other construction so as to become an integral part of it, such as building materials, are its component parts without regard to ownership. (465) (building materials, bricks, windows, nails)
i. Landry - topsoil is an integral part of the land; immovable (465)

(g) Component parts under 463 & 465 are distinct. The thing has to fall under one or the other not both.

(h) (466) Permanent attachments: Things permanently attached ro a building or other construction, such as plumbing, heating, cooling, electrical or other installations are its component parts.
OR
Things are considered permanently attached if they cannot be removed w/o substantial damage to themselves or to the immovable to which they are attatched. Equibank Chandeliers are component parts - crt took the ordinary view of society into consideration and ease of removal and installation - do you need to be an expert.

(i) 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 in the parish registry (467).
4 requirements:
(1) unity of ownership
(2) immovable (not the private residence)
(3) actually there for service and improvement of the immovable
(4) registration of the immovable

(j) To be a component part:
Unity of Ownership required under 463 Building, other construction, timber, crops will be a component part of the land only when there is unity of ownership. 467 declaration of immovable - register it
No Unity of Ownership required: 465 permanent attachments that become integral parts of land, building, or other construction
466 Permanent attachments - certain installations in a building or those that can’t be removed w/o harming it or the thing it is attached to

3. Moveables
i. Other constructions, unharvested crops or ungathered fruits can not be separate (owned by someone other than the landowner) immovables. They are moveables when no unity of ownership. (474) if they are component parts of the ground b/c of unity of ownership.

ii. Moveables can become immovables and then movables again this process is call deimmobilization
(e) Deimmobilization(468) no longer servicing the immoveabe
(1) damage or deteriorated
(2) Sold to a 3rd party by the owner & delivered
i. Sale does not deimmobilize it. The owner must authorize the sale or make the sale himself. There must be physical removal.
(3) In the absence of rights of third persons, the owner is free to de-immobilize anything (actual removal not intent to remove)

iii. 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 (472)
(a) Materials separated from a building or other construction for the purpose of repair, addition, or alteration to it w/the intention of putting them back, remain immovables

D. Susceptibility of touch
1. Corporeal - it has a body
2. Incorporeal - identify the object of the legal right. If the object of the right is immovable then it is an incorporeal immovable
i. Incorporeal immovable: Rights and actions that apply to immovable things are incoporeal immoveables. (Personal and predial servitudes established on immovables, mineral rights, petitory or possessory actions) (470)
Ex: mineral servitude, Trust (The thing placed in the trust is the object of the legal right court decided in St. Charles Land Trust that a trust is not a juridical entity which would make it an incorporeal moveable instead the object of the trust determines whether it is incorporeal moveable or immovable. Where in this case the trust was dealing w/mineral rights so incorporeal immoveable)

ii. incorporeal moveable: Rights, obligations and actions that apply to a movable thing are incorporeal movables. Movables of this kind are such as bonds, annuities, and interests or shares in entities possessing juridical personality (473)
Ex: juridical entities such as corporations,

Accession

1. Definition - the ownership of a thing includes by accession the ownership of everything that it produces or is united with it naturally or artifically(482)

2. Owner of thing acquires ownership of fruits unless there are rights of other persons: usufruct, possessor in good faith, lessee (483)

3. Separate ownership is permitted of buildings, other constructions, standing timber,crops
i. Pre requisite is consent
ii (493) Buildings, other constructions permanently attached to the ground, and plantings made on the land of another with his consent belong to him who made them. They belong to the owner of the ground when they are made w/o his consent.

(a) When the owner of buildings, other constructions permanently attached to the ground, or plantings no longer has the right to keep them on the land of another, he may remove them w/in 90 days after written demand, the owner of the land acquires ownership of the improvements and owes nothing to their former owner.
Marcellous v. David - ? let p put her house on the land. She had consent so she doesn’t lose ownership. Proof of consent. The dispute was between them
Graffagnino - lessee constructed O-dome on lessors land he had consent from the lessor. Third party comes in the picture. He buys lessors land. Consent is only good between the parties it is not good to third parties.

(b) An instrument involving immovable property shall have effect against third persons only from the time it is filed for registry in the parish where the property is located (1839)

(c) Public record’s doctrine intervenes. Consent alone between parties is enough but it is not enough to effect third parties

(d) Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits or trees may belong to a 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 an instrument filed for registry in the conveyance records of the parish in which the immovable is located. (491)

(e) Moveable or immovable the thing is still subject to the public record’s doctrine
Predial Servitudes
A. General Provisions (646 - 654)
1. Charge on a servient estate for the benefit of a dominant estate; incorporeal immovable

2. The two estates must belong to different owners

a. There can be no servitude if the two estates belong in their entirety to the same owner; a co-owner may have a servitude on an estate on which he is the sole owner.

b. An estate is a distinct corporeal immovable. Tracts of land, buildings and standing timber are estates but not constructions other than buildings

3. A benefit must exist to the dominant estate but this benefit need not exist at the time of creation so long as the benefit is reasonable expected (possible convenience or future advantage suffices) 647

4. A predial servitude can only be on corporeal immovables - land, building, condominiums

5. Neither contiguity nor proximity of the two estates is required

6. The servitude is inseparable from the dominant estate. (Any alienation, seizure or encumbrance of the dominant estate includes the predial servitudes).

7. The owner of the servient estate is not required to do anything other than allow some thing to be done on his estate or refrain from doing a certain thing on his estate. The owner may have some duties affirmative duties however they are merely incidental to the exercise of the servitude(keep his estate in suitable condition for the exercise of the servitude). (651)

8. Kinds of servitudes: natural, legal (imposed by the law), voluntary or conventional (juridical act, destination of the owner, acquisitive prescription)

B. Natural servitudes (655 - 658)

1. Drainage
a. An estate below is bound to receive surface waters that flow naturally from estate above unless the flow has been created by man

b. Neither estate may interfere with this right (or do anything to prevent the flow of water)

2. Owner of an estate bordering on water or with water flowing through it may use it but may not stop it or give it another direction.

C. Legal Servitudes (659 - 696)

1. Definition: limitations on ownership established by law for the benefit of the general public or particular persons. (The owner is bound to keep his buildings in repair so they don’t fall on neighbor or passerby, always take necessary precautions to protect neighbor, a landowner may not build projections over boundary, rain drip from roof falling on neighbor yard - bound to fix, bound not to inconvenience neighbor etc)

2. Encroaching building - When a landowner in good faith constructs a building that encroaches on an adjacent estate and 1) the owner of that estate does not complain w/in a reasonable time after he knew or should have known or
2) complains only after the construction is substantially completed, the court may allow the building to remain. The owner of the building acquires a predial servitude on the land occupied by the building on payment of compensation for value of the servitude and other damages (670)

a. Thomas v. Hemphill: CA said no predial allowed for encroaching building b/c ?’s trailer was not a building

3. Common walls, enclosures, etc (673 - 688)

a. Party walls

i. The landowner who build first has the right ro rest half of the wall on his or her neighbor’s land if the wall (1) is made of solid masonry (2) is at least as high as the first story and (3) is not more than 18 inches thick not including the plastering which may not be more than three inches thick (One has a right to build a wall under this provision if the neighbor has only merely build a fence or wooden wall) (Likewise the existence of a house or of a brick or stone wall more than nine inches away from the boundary does not preclude the exercise of the right granted under this article)

ii. The neighbor may make the wall common at any time by paying one half of the current value of the wall

iii. A wall that separates adjoining buildings and rests on two estates is presumed to be common up to the highest part of the lower building

iv. The co-owners of a common wall share expenses for necessary repairs. A co-owner may be relieved of obligation to pay for repairs by abandoning in writing right to use it. May not abandon if the common wall supports a construction that he or she owns.

b. Trees, bushes etc. on boundary lines are presumed to be common
i. If tree is inside your property you may do with it as you please. If the tree is on your neighbor’s property, he has the right to do with it as he chooses

ii. Landowner may demand that the roots and branches of a neighbor’s tree or plant that extend onto and interfere with the enjoyment of his property be tremmed at the neighbor’s expense

iii. If a tree is on the boundary line either landowner may demand removal at his expense if the tree interferes with thee enjoyment of his property.

4. Right of passage (689 - 696)
Definition: The law imposes a duty on an estate to be in a position of service. It is against public policy to keep land unused

a. An 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. 689

b. The owner of the enclosed estate ma construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude 691

i Extent of passage: What is reasonable necessary for use of the enclosed estate 690

ii. Location: shortest route from the enclosed estate to public road, where least injurious to servient estate

iii. The owner of the dominant estate may construct a road as necessary and pay for damages

c. If an estate becomes enclosed due to a voluntary act of its owner, the owner has no right to demand passage; he may, however obtain a passage by paying of for it. 693. Owner owned a plot of land where he partitioned the property and sold the half that has entrance to a public road therefore enclosing himself.

d. In LeBlanc v. Thibodeaux, the SC held that article 693 does not apply to an estate enclosed when a servitude granted in a partition prescribed because of a failure to use for 10years. Such an estate is entitled to a right of passage under 689. Court looked at 693 b/c 694 prescribed b/c of non - use. When 694 prescribed you have to look at 689.

e. When in the case of partition or a voluntary alienation of an estate or of a part, property alienated or partitioned becomes enclosed (buyer or co-owner enclosed), passage shall be furnished gratuitously by the owner of the land on which that passage was previously exercised, even if it is not the shortest route to the public road and even if the act of alienation or partition does not mention a servitude of passage. 694

f. Hypo: B is partitioned into C & D. D is enclosed. Through C ‘s property = 200 yards (694). D through A’s property = 100 yards (689). Because the land became landlocked through partition article 694 should apply. Can you have a right under 689 despite the right you have under 694? No.
(1). Public policy - burden the person who created the enclosure
(2) If you have a passage under 694 then you don’t qualify under 689.
Exception is Stucky v. Collins - where passage across sellers land was impossible or highly impractical or there really never was one under 694 so 689 applies

g. The owner of the enclosed estate has no right to the relocation of this servitude. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, if location is equally convenient to the dominant estate.

D. Conventional Servitudes (697 - 774)
1. Juridical act (contract, title), destination of owner, acquisition prescription
a. The juridical act must be in writing. Langevin v. Howard the writing was on a check. Crt said no contract. The writing must describe the thing and price

2. Owners have the right to establish whatever predial servitudes they desire restricted only by public policy. Examples of common ones are support, view, light, and passage.

3. Predial servitudes are affirmative or negative; apparent or nonapparent

a. Affirmative: those that give the right to the owner of the dominant estate to physically do a certain thing on the servient estate. (Right of way, drain and support)

b. Negative: those that impose on the owner of the servient estate the duty to abstain from doing something on his estate ( prohibition of a building or of a building a certain height and the use of an estate as a commercial or industrial establishment).

a. Apparent - those that are perceivable by exterior signs, works or constructions (a roadway, a window in a common wall or an aqueduct)

b. Nonapparent - those that have no exterior sign of their existence; (such as the prohibition of building and estate or of building above a particular height)

4. Establishment by title

a. An alienation of a part of property to which laws applying to the alienation of immovables apply.

i. Must be in writing

ii. A mandatary may establish a predial if he has the express and special power to do so

b. The naked owner may establish a predial servitude on the estate as long as it does not infringe on usufructuary’s rights. Usufructuary may not establish predial servitudes. Persons having ownership under a term or condition or a reserved right (owner will reclaim property @ end) may grant one but it will terminate at the end of his ownership

c. All co-owners must concur in the granting of a servitude over the entire property but if one is granted by only one owner, the servitude is merely suspended until the owners agree. If they do not agree and the co-owner who granted the servitude becomes the owner of the whole estate, the servitude burdens his property. If a co-owner grants a servitude on his undivided share, the exercise of the servitude is suspended until his divided part is determined.

d. The owner of the servient estate may grant other servitudes if they do not interfere with the prior ones

e. Predial’s May be established through all means by which immovables may be transferred. May be established on public things

f. A servitude may be established on one estate for the benefit of several or established on several for the benefit of one

g. Reciprocal servitudes are legal

h. Parties may agree that a servitude will exist on the property if ever acquired by one even though at that time he or she does not own it and a building not yet built will be subjected to or benefit from a servitude when built

i. Doubt as to the existence, extent or manner of exercise of a predial shall be resolved in favor of the servient estate

4. Acquisition of conventional servitudes for the dominant estate (735 - 750)

a. May be established by the owner of the dominant estate or anyone acting for him
i. The owner may reject a servitude made for his estate if it was made w/o his authority and if he finds it onerous
ii. The person granting the servitude cannot reject the servitude on the ground that the person who acquired it for the benefit of the dominant estate was not the owner, he was incompetent or he lacked authority
iii. An incompetent may acquire a predial servitude for the benefit of his estate w/o the assistance of the administrator, tutor or curator

b. Apparent servitudes may be acquired by (1) title (2) destination of owner or (3) acquisitive prescription

c. Non apparent servitude may be acquired by title and destination of owner but not by acquisitive prescription

d. Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners. 1) When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence. 2) A non-apparent servitude comes into existence if the owner had previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the.

(1) Before a servitude will be created by destination of owner you have to take into account what was originally intended for the potential predial (right of passage) 730 Bienville

(2) When you buy a piece of property w/an apparent servitude - “buyer beware”you may be inheriting a predial servitude. However it must be visible to an ordinary inspection.

(3) If I own land and sell part of my land and enclose myself - the only way I am saved under 741 (destination of owner is if an apparent servitude is visible or if the servitude is non- apparent and I registered the servitude in the conveyance records.) If servitude is not apparent and not registered I enclose myself

e Accessory rights are necessary for the use of a servitude are acquired at the time the servitude is established. They are to be exercised in a way least inconvenient for the servient estate.

k. Acquisitive prescription of an apparent servitude is ten years in good faith with just title and thirty years otherwise. If a situation continues long enough then that is what the law recognizes. Servitude must be apparent b/c we want the real owner to know that someone is defying his rights.

5. Rights of the owner of the dominant estate - conventional

a. The owner of the dominant estate has the right to make at his expense all works that are necessary for the use and preservation of the servitude

i. The owner of the dominant estate has the right to enter his workman in servient estate, deposit materials used, causing the least possible damage

b. An act establishing the servitude can bind the servient estate to make necessary expenses - he may exonerate himself by abandoning the servitude. These affirmative duties are allowed b/c they are merely accessorial

c. If dominant state is divided - servitude remains provided no additional burden is imposed

d. Servient estate can do nothing to diminish or make inconvenient the use of the servitude. If the original location becomes burdensome w/dominant estate approval he can move it ( he has to pay expenses)

e. If title is silent to extent and manner of use of servitude - look at what was intended

f. If title does not specify location of servitude - servient estate decides

6. Extinction of the servitude

a. Extinguished by total and permanent destruction of the dominant estate or of the part of the servient estate burdened with the servitude

b. If the servitude becomes useless b/c of a change in the things necessary for its use, it is extinguished. It resumes its effect when the things are changed back and the servitude becomes useful again unless prescription has run

c. Prescription of non-use

i. Extinguished by ten years of non-use
(a) interruption - turns the clock back to zero
(b) suspension - you press the pause button

ii. The use of a right that is only accessory to the servitude is not use of the servitude.

iii. For affirmative servitudes, prescription commences on date of creation, is interrupted by use, and commences again after termination of use.

iv. For Negative servitudes, prescription commences from the date of the contrary act ( if you are not supposed to build a building above 100ft and 9 years into the servitude you decide to build your building above 100ft - if no one says anything for 10 years that servitude is extinguished)

v. Conventional servitudes are lost by non-use for ten years, but natural and legal servitudes do not prescribe. Use by a co-owner applies to all co- owners

vi. If the owner of the dominant estate is prevented form using the servitude by an obstacle which he or she is powerless to remove then prescription is suspended for up to ten years.

vii. The servitude is preserved by anyone using it, even a stranger, if the use can be construed as appertaining to the dominant estate

(a) However if it is just someone passing over the land considering it as a public use to get somewhere other than the dominant estate this does not interrupt prescription Thompson v. Meyers - boy passing over land to get to store did not interrupt prescription of non - use

d. Confusion extinguishes a predial servitude - dominant and servient become one

e. Abandonment: the owner of the servient estate may abandon his or her estate or the part of it burdened with the servitude; must be evidenced by a written act.

f. Renunciation: express and written renunciation by the owner of the dominant estate.

g. Expiration: if the servitude is established for a term or under a resolutory condition, it is extinguished when the term expires or the event happens

Hypo: A gas company has acquired right of passages to numerous lands. The right of passage allows the gas company to install underground gas pipes - they have installed the line. The gas company wound up having a number of different gas pipes to use to get the gas to their building. They have not used my line for the past 14 months. They did know that if they did not use the line for 12 months the right of passage ends. So with in that 14 months they flaired the gas through the pipes here and there.

Does this contract create a predial servitude?
Yes it is a predial servitude b/c it is a charge that goes with the land. The charge is on land to benefit the dominant estate. A gas company can create a servitude in favor of a building. Land, buildings, condo’s corporeal immovables - predial servitudes can only be on corporeal immovables.

Would it matter if the gas company created a servitude to the building even if the building not there yet? It would not matter - you can create a predial on a future building
What if the title did not recognize the right as a predial servitude?
730 - doubt as to the existence, extent or manner of exercise of a predial servitude shall be resolved in favor of the servient estate
731 a charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated
732 when the act does not declare expressly that the right granted is for the benefit of an estate or for the benefit of a particular person, the nature of the right is determined in accordance with the intent
Where is the greater benefit - in favor of a person or an estate
If you say it is predial it is as long as 1) there are 2 different owners 2) benefit is for an estate

Can you have a predial servitude if the benefit is to the corporation? No but you can have a personal servitude through right of use

Is there contractual freedom to change the prescription of non - use from 10 years to 12 months? The prescription of non- use is mandatory. It appears that article 3471 is looking out for the best interest of the servient estate so it appears that you can make it harder for the dominant estate (make the prescription shorter)

Does trickling gas through the pipes interrupt prescription?
If it is not using the benefit as intended by the dominant estate then it is probably not interrupting prescription
Accessory use does not interrupt prescription

1 (a) What is Mr. A’s legal status or classification today regarding the 200 acre tract of land?

Assuming Mr. A’s possession has been for over a year he acquires the legal right to possess(3422). The second question then is Mr. A good faith or bad faith possession.
A possessor is in good faith when he reasonably believes in light of objective considerations, that he is the owner of the thing he possesses(3480 & 3481). However this presumption can be rebutted on proof that he knew or should have known that he is not the owner of the property.
Mr. A’s good faith possession may be rebutted if it can be proved that at commencement of the sale he knew that the title said that he did not have ownership of the 200 acres. If he had an honest and reasonable belief that he was owner of the 200 acre tract of land it is likely that the court will find Mr. A a good faith possessor

What about just title do I need to bring that up at this point?

Just title may not be a good title. A just title must be in writing, in valid form and recorded in the parish. If Mr. A has not satisfied the elements of just title then he is not a good faith possessor.

1 (b) Because Mr. Willie is attempting to evict Mr. A from the 200 acre tract of land and Mr. A. has acquired the legal right to possess the land, Mr. A should bring a possessory action against Mr. Willie.
A possessory action in an action brought by the possessor of immovable property to restore his possession or enjoyment when he has been evicted. (P512) To maintain the possessory action Mr. A must prove that 1) He intended to possess as owner and 2) He had possession of the immovable at the time the disturbance occurred, that he had corporeal possession w/o interruption for more than a year. (The possessory action must be instituted w/in a year of the eviction.)
Mr. A has had possession for over a year so he has the legal right to possess. He intended to possess as owner and he had corporeal possession. Mr. Willie has only been in possession for a month so he does not have the legal right to possess. Therefore it is likely that Mr. A will win the possessory action.

1(c) However it is slightly probable then if Mr. A wins the possessory action that Mr. Willie will bring a petitory action against Mr. A.

A petitory action (p484) is one brought by a person who claims the ownership but who is not in possession of the immovable. The action is brought against another who is in possession. To obtain a judgement recognizing ownership Mr. Willie must prove 1) that he has acquired ownership from a previous owner or by acquisitive prescription or 2) prove a better title than Mr. We know that Mr. A’s title does not convey ownership of the 200 acre tract of land. However it is possible that there is a flaw in this title. Mr. Wille must prove that he has a better title than Mr. A, or he obtained possession through acquisitive prescription or a previous owner.
If Mr. Willie has a title that conveys his ownership to the 200 acre tract it is likely that he will win the petitory action.

1 (d) Now that Mr. Willie has proven his right or ownership of the 200 acre tract, he has rights against Mr. A’s good faith possession of the land over the past year.
Mr. A cut down cypress trees and sold them for $100K. He then used the land to cultivate a cajun orchid crop yielding $500K. Mr. A also found small deposits of minerals which he sold as cayenne pepper yeilding $200K. Mr. A also attached a trailer structure to the land used as a store.
Mr. Willie and Mr. A have rights to profits & expenses depending upon whether a thing is determined to be a fruit or a product. Furthermore one of the parties has rights regarding the store on the land.
(551) Fruits are things that are produced by or derived from another substance with out diminution of its substance. Natural fruits are fruits of the earth or animal. Trees are born of the soil but they ordinarily are not considered fruits unless they are operated as tree farms. Mineral substances extracted from the ground and the proceeds of mineral rights are not fruits b/c their production results in depletion of property. (488) Products are derived from a thing as a result of diminution of its substance
Thus it is likely that the Cajun Orchid Crops will be treated as fruits and the Cypress Trees and Mineral seasonings will be considered products.
(486)A possessor in good faith acquires the ownership of fruits he has gathered. If he is evicted by the owner he is entitled to reimbursement of expenses for fruits he was unable to gather.
Thus Mr. A is able to keep the profits from his Orchid crop. He is also entitled to expenses he dispensed in cultivating the existing crop. He is not however entitled to profits of the existing crop.
Products derived from a thing belong to the owner of that thing. When they are reclaimed by that owner, a possessor in good faith has a right to reimbursement of expenses. (488).
Thus Mr. A must return all of the profits derived from the Cypress trees and the Mineral seasonings. Mr. A will be reimbursed expenses for the cultivation of the gathered trees and minerals. He gets no profit or reimbursement of expenses for the uncultivated trees and minerals.
Finally, in addressing the trailer attatched to the ground it is likely that this will be deemed another construction permanently attatched to the land.
When constructions are made by a good faith possessor the owner of the land may not demand there demolition or removal. He is bound to keep them and at his option to pay to the possessor either the cost of the materials and of the workmanship or their current value or enhanced value.

2 (1) When fruits or products are produced by a co-owner other co-owners are entitled to their share of the fruits or products after deduction of the costs of production (798)
However if Etienne’s expenses were not out of pocket he is not entitled to reimbursement.
Victor may argue that he is only entitled to pay Ѕ of the $10,000 that resulted in the finding of oil. If a co-owner unilaterally tries to create fruits and doesn’t but he incurs expenses he has to bear the loss for not consenting.

2(2) Eva as a usufruct