Louisiana Civil Law Study Notes

Louisiana Civil Law

History of the Louisiana Civil Law System

  • The Louisiana Civil Law System is primarily based on the Napoleonic Code.

  • The system is influenced by Roman Law, established during the time when Louisiana was under Spanish rule.

  • In contrast, laws in the other 49 states of the U.S. are based on English Common Law, leading to distinct differences in legal practices.

  • One of the most significant differences is:

    • The Common Law system relies on precedents, which are past decisions in similar cases, as the basis for current case outcomes.

    • This practice is known as the principle of stare decisis.

    • Conversely, the Civil Law system utilizes a comprehensive code of laws to determine the outcomes of cases.

  • The Louisiana Civil Code was first established in 1808, with heavy influence from the ideas arising from the French Revolution.

  • This Code underwent revisions:

    • Revised in 1825, which clarified certain areas of confusion.

    • Major modifications occurred in 1870, focusing on the removal of provisions regarding slavery.

  • The current laws have seen many changes but are still predominantly based on the 1870 Code.

Types of Real Property

  • The categorization and definition of property types are crucial to understanding the application of Louisiana Civil Law.

Definitions:

  • Corporeal things:

    • Defined as items that can be perceived through the senses.

    • Examples include tangible entities like land or buildings.

  • Incorporeal things:

    • Defined as items that exist conceptually and are understood mentally.

    • Primarily comprise rights, which include rights of inheritance, servitudes, and obligations.

  • Private things:

    • Property owned by individuals or private entities, such as corporations, limited liability companies, or limited liability partnerships.

  • Common things:

    • These are resources that cannot be owned by anyone; for instance, elements such as air and the high seas.

  • Public things:

    • Properties that are owned by the state or local government.

    • Examples include:

    • Running water

    • Navigable waters

    • Seashore, streets, and parks.

    • Available to the public for activities such as fishing, boating, driving, etc.

    • May be regulated under the police powers of local municipalities.

Specific notes on Public Use:

  • Some private properties can be subject to public use, illustrated by examples like riverbanks or sidewalks.

  • The levee serves a specific role:

    • If present, the levee is viewed as the bank of the river.

    • If absent, the bank refers to the land lying between the natural high and low watermarks of the river.

Movables and Immovables

  • In Louisiana, real property is categorized into:

    1. Movables

    2. Immovables

Immovables consist of land and its component parts such as buildings, timber, and unharvested fruits and crops when they belong to the owner of the land.

Separate immovables include buildings and standing timber when they belong to a person other than the owner of the ground. Only buildings and standing timber may be separate immovables.

Movables by anticipation include unharvested fruits and crops when they belong to a person other than the owner of the land.

Incorporeal immovables all rights and actions that apply to immovables are classified as incorporeal immovables. The right of ownership is an incorporeal immovable. Predial servitudes such as natural, legal, or conventional servitudes, are incorporeal immovables. Personal servitudes established on the immovable, usufruct, habitation, and rights of use are incorporeal immovables. Also included in this classification are mineral servitudes, royalties, and mineral leases.

Corporeal movables are things, whether animate or inanimate, that move or can be moved from one place to another. The classification of corporeal movable includes building materials gathered for the construction or the erection of a new building, even if they came from the demolition of an old one. However, materials separated from a building for purposes of repair, with the intention of putting them back, remain immovables. The classification of incorporeal movables includes such items as stocks, bonds, and annuities.

Component by incorporation includes things attached or incorporated into a building or other construction. They become component parts of the structure. This includes building materials. Once incorporated into an immovable, the thing becomes an immovable.

Component by attachment: Things are considered permanently attached to a building or other construction if they cannot be removed without substantial damage to themselves or damage to the immovable to which they are attached. Things that are considered permanently attached to a building include such things as plumbing, heating, cooling, electrical, or other installations. Accordingly, they constitute component parts of the building or construction.

Component by declaration and registry: Things that would otherwise be classified as immovable may be classified as movable. The owner of an immovable may declare that machinery, appliances, and equipment owned by him and placed on the immovable, other than his private residence, for its service and improvement are deemed to be its component parts. The declaration must be filed for registry in the conveyance records of the parish in which the immovable is located. If the declaration is not so filed, the machinery, appliances, and equipment remain classified as movables.

Mobile Homes: In order for a mobile home to be considered an immovable, a declaration stating that it will remain permanently attached to the land must be filed in the public records of the parish in which the land is located. The wheels must be removed, the tongue cut off, and it must be tied down.

Detachment Sale
A manufactured home may be deimmobilized by detachment or removal. But, to affect third persons, an authentic act of sale or mortgage or sale with mortgage must be filed in the appropriate mortgage and/or conveyance records.

Arpent
An arpent is a French unit of measure about equal to \frac{5}{6} of an acre. It is also used as a linear measure about equal to 192 feet.

Meridians and Baselines
In Louisiana, there are two principal meridians, the 91st West of the Mississippi River, called the Louisiana Meridian, and the 90th East of the Mississippi River, called the St. Helena Meridian. There is one base line which transects the State of Louisiana at its center.

RIGHTS IN IMMOVABLES

LOUISIANA'S BUNDLE OF RIGHTS

(Abusus, Usus, Fructus)

Ownership is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law. Louisiana law divides ownership into three categories:

  1. Usus
    The right to use a thing, and to exclude others from using it.

  2. Fructus
    The owner of a thing owns the fruits produced by the thing that come from exploiting and enjoying the thing, such as rents and profits from agriculture and timber.

  3. Abusus
    Abusus is the right to alienate or dispose of the thing. It includes consuming it, giving it away, selling it, and encumbering it by mortgage or pledge.

Usufruct
A person who owns both the usus and the fructus owns the usufruct.

Naked Ownership
The owner of the remaining right, the abusus, is called the naked owner.

A servitude is a charge on a thing. There are two kinds of servitudes: personal servitudes and predial servitudes.

I. Personal Servitudes
A personal servitude is a charge on a thing in favor of a person. There are three kinds of personal servitudes: usufruct, habitation, and right of use. Personal servitude can be compared to the Common Law easement in gross.

A. Usufruct
Usufruct is a real right of limited duration on the property of another. It is similar and may be compared to a "life estate" in the common law, but it is not identical. The owner of the usufruct is called the usufructuary. The usufructuary has the right to the use and the fruits of the property for a limited period of time, usually for life. If a thing cannot be used without being consumed or expended or its substance changed, such

Usufruct

A usufruct may be established by an agreement between those living, by testament effective at death, or by operation of law.

  • Conventional Usufruct: is one that is created by an act.

  • Legal Usufruct: is one that is created by operation of law.

  • Death of the usufructuary will terminate the usufruct.

  • The usufruct will also terminate if the usufruct is held by a legal entity which ceases to exist.

  • The usufructuary may lease, alienate, or encumber his right. This is called disposition.

  • Any contracts that alienate or encumber the usufruct will end when the usufruct is terminated.

  • The usufructuary remains liable to the naked owner for any abuse by the assignee of the usufruct.

  • The naked owner may dispose of the naked ownership and may alienate or encumber the property, but this action will not affect the usufruct.

B. Habitation

  • Habitation: is a nontransferable real right of a natural person to dwell in the house of another.

  • It may be established in the same manner as a usufruct.

  • It terminates with the term provided or when the person having the habitation dies.

  • Moreover, the personal servitude of habitation may not be alienated, let, or encumbered.

C. Right of Use

  • Right of use: is a personal servitude that confers in favor of another person a specified use of an estate less than full enjoyment.

  • The right of use is transferable and may be inherited, unless prohibited by law or contract. An example of the right of use would be a hunting license.

II. Predial Servitudes

  • A predial servitude is a charge on a servient estate for the benefit of a dominant estate and is similar to easement appurtenant under the common law.

  • The dominant estate is the one benefiting from the servitude.

  • The servient estate is the one who gives the servitude.

  • The two estates (land, usually) must belong to different owners and must be located in such a position that one benefits or it may be reasonably expected to benefit from the charge placed on the other.

  • The predial servitude can only be terminated by the dominant estate, that is the landowner needing access.

  • It is inseparable from the dominant estate and passes with it.

  • The right cannot be sold or encumbered separate from the dominant estate.

  • If the servient estate is sold, the servitude continues ever after the sale.

  • The most common example of a predial servitude is when one landowner obtains access across the property of the adjoining landowner to reach a public road or a water source.

Predial Servitudes

Predial servitudes may be natural, legal, or voluntary or conventional:

A. Natural Servitudes

A property which lies at a lower elevation will naturally receive surface waters flowing from an adjoining property which is at a higher elevation. This running water may be used, but not stopped, nor diverted.

B. Legal Servitudes

Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. An owner of a building must keep his building in repair so that neither it nor its materials will fall on or damage a neighbor or passerby. The owner of a building near a wall, whether or not a common or party wall, must protect his neighbor against injury. Neither projections over boundaries nor water falling from a roof onto ground of a neighbor are allowed. An owner of property may do with his estate whatever he pleases; however, this right is limited by his responsibility to not damage a neighbor.

Party Walls
A party wall is one which rests half on one property and half on an adjoining property. The first person to build a wall may build half of the wall on a neighbor's land if the first story is constructed of masonry not over eighteen inches in width and three inches of plaster. To become a common wall, the neighboring landowner must pay one-half (1/2) its current value.

Enclosed Estates
An owner without access to a public road may claim a right of passage to the nearest public road; however, he must pay for the damage occasioned as a result. The owner of the enclosed estate may construct the type of road necessary, along the shortest route, generally at a location least injurious to intervening lands.

C. Conventional Servitudes (Voluntary)

A predial servitude may be created by contract, that is, by agreement of the parties. Examples of conventional servitudes would be the rights of passage, projection, view, etc.

Prescription
A servitude may be acquired by acquisitive prescription, that is, by peaceable and uninterrupted possession of the right for ten (10) years in good faith and with just title or by uninterrupted possession for thirty (30) years without good faith or just title. A predial servitude may be lost by nonuse for ten (10) years.

Confusion
When the same person acquires both the dominant and servient estates, the predial servitude ceases to exist. The term for this is "confusion" which is similar to the common law term "merger."

BUILDING RESTRICTIONS

Building restrictions govern building standards, uses, and improvements. Building restrictions are enforced landowner in the subdivision filing suit in court to obtain an injunction. The violator may also be sued for damages.

If no termination date or other provision appears in the act creating the restrictions, building restrictions may be terminated or amended as follows:

  1. After the restrictions have been in effect for fifteen (15) years, the agreement of owners representing more than one-half the land area (excluding streets and rights-of-ways); or

  2. By the agreement of both (a) owners representing two-thirds (2/3) of the land area, and (b) two-thirds (2/3) of the owners of the land (excluding streets and right-of-ways) affected by the restriction after the restrictions have been in effect for ten (10) years.

  3. By abandonment of the whole plan or by the general abandonment of a particular restriction. If a particular restriction is abandoned, the affected area is freed of that restriction only.

HOMESTEAD EXEMPTION

If a homestead is sold at the sheriff’s sale, the homeowner is assured that his homestead will sell for more than $35,000 and that the owner may retain or receive from $35,000. The right to a homestead will invariably contain a clause in which homestead rights are waived. However, both spouses must sign if there is a waiver unless the property is separate property, in which case only that owner must sign.
This is not to be confused with the $7500 homestead exemption for property taxes.

HOW OWNERSHIP IS HELD

Co-Ownership (Undivided Interest)

Co-ownership is ownership by two or more persons, each having an undivided share, often called an undivided interest. The share or interest can be in any proportion, equal or unequal, as stated in the contract and may be acquired at different times and by different methods. Each owner may exercise all rights of ownership of his undivided interest, subject to legal and conventional limitations, without consent or knowledge of his co-owners.

Community Property (Matrimonial Regime)

A matrimonial regime is a system of principles and rules governing the ownership and management of the property of married person or between themselves and toward third persons. The matrimonial regime may be established by law or by contract, or a combination.