Law Student Outlines Selected by
Prof. George Mentz
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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)
-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
-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
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
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
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
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
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
i. In case of eviction the right to possess is lost if
the possessor does not recover possession w/in a year of
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
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
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
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
(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
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,
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
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
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
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
c. Petitory action
i. Brought by someone who claims ownership against another
in possession or who is asserting ownership adversely against
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
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
(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
(a) Flaw in the title prevents the just title from being
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
i. Possession is transferable by universal title or by particular
(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
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
(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
(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
(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
(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
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
#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
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
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)
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
2. Exclusion of partition
a. Partition can be excluded by agreement for up to 15
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
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
(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
(483) In absence of rights of other persons, the owner
of a thing acquires the ownership of its natural and civil
(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
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
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
3. A right of use is transferable (alienable) unless stipulated
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
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
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 ½ owner and ½ usufruct while child is naked
owner. So mom as a ½ 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,
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
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
(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
(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
(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
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
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
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 -
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
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
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
b. Nonconsumable - usufructuary has to return the thing
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
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
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)
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
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
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
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
(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
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).
(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
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
(3) In the absence of rights of third persons, the owner
is free to de-immobilize anything (actual removal not intent
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
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
Ex: juridical entities such as corporations,
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
(c) Public record’s doctrine intervenes. Consent alone
between parties is enough but it is not enough to effect
(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
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
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
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)
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
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
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
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
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
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
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,
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
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
f. A servitude may be established on one estate for the
benefit of several or established on several for the benefit
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
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
(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
(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
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
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
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
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
730 - doubt as to the existence, extent or manner of exercise
of a predial servitude shall be resolved in favor of the
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
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
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
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
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.
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 ½ 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 usufructuary and surviving spouse does have
a right to the mineral’s beneath GA even if they have not
2(3) A usufructuary that is not a surviving spouse is only
entitled to royalties on wells penetrated
Shell did not penetrate the well upon commencement of the
usufruct Uncle Bill is not entitled to the royalties. Who
is entitled to the royalties
However Uncle Bill is entitled to the rents provided by
the Mineral Lease because a usufructuary has a right to
all fruits. Rents are considered civil fruits.
3(1) In a community property state with out a will ½ of
the community property goes to the surviving spouse and
the other ½ goes to direct decendants. Because Eunice is
the only decendent she will receive ½ of the community property
however her ½ will be subject to a usufruct by her mother
and Eunice will be naked owner.
Assuming the land and the care were community property ½
of the land would be completely owned by Selma and the other
½ will be subject to Selma as a usufructuary and Eunice
as a naked owner.
A usufructuary is entitled to all fruits. Rents are fruits.
So Selma is entitled to the rents collected from Benny and
she can do what she pleases with this money.
However a usufructuary (558) may make improvements and alteration
on the property subject to written consent of the naked
owner. If no consent is given the usufructuary may seek
court approval. If the usufructuary does not get consent,
they run the risk of the naked owner makeing them liable
for not acting as a prudent administrator (576) Usufructuary’s
failure to adhere to prudent administrator may be answerable
for losses. Anything that alters the substance is outside
the element of usus.
The usufructurary has a duty to preserve the substance of
the nonconsumable (539). If the property value has decreased
Eunice may seek damages against Selma’s estate.
Upon Selma’s death Eunice acquires ½ ownership of the land
3(2) A car is a non-consumable thing. Therefore its substance
must be preserved. (568) If the usufructuary has not disposed
of corporeal moveable that are by their nature impaired
by use, wear or decay, he is bound to restore them at the
end of the usufruct.
The usufructuary is relieved of this obligation if the thing
is entirely worn out by normal wear and tear.
3(3) It appears that the stock could be Selma’s separate
property b/c it was in her name. Eunice is entitled to nothing.
However assuming the stock was purchased with community
$. Then Eunice is ½ naked owner of the stock.
It is customary if the stock was an investment that it be
deemed a nonconsumable. Selma thus is entitled to dividends
which are fruits however she must preserve its substance
and do as a prudent owner would do. At the termination of
the usufruct the stock was worth $1200 therefore Eunice
is entitled to $600.
3(4) Car is nonconsumable. Usufructuary is responsible
for ordinary repairs and maintenence. Improvements are not
Civil Law Property
Louisiana Civil Code
I. Civil Code
A. drafted on commission of Napoleon in 1804.
B. largely from Roman law with additions of European medieval
C. Property is area most different between Civil and Common
D. Deals only with private law and comprises general principles.
II. Philosophy of Civil Code
A. Introduction of Civil Code after French Revolution ended
legal order of feudal system
B. Founded upon values of merchants
1. absolute private property freely available in commerce.
2. Freedom of contract
3. Strong, stable family lasting through life.
4. Sense of equity (sometimes softens the logical appeal
of other goals)
Property In General
I. Defined as ownership and its modifications
A. Ownership is a real right that confers direct, immediate
and exclusive authority over a
thing. (Article 477)
B. Ownership contains the rights of usus (use), fructus
(fruits of thing), and abusus
(disposition) of a thing.
1. ownership is a right over a thing that the state will
II. Modifications of Ownership.
A. A taking of one or more of the rights of ownership and
transferring to another
as allowed by law.
B. This dismemberment is called a real right. (3 kinds)
2. personal and predial servitudes
3. other as allowed by law.
C. Personal Servitude
1. creates an interest in the rights of a thing for benefit
of a person.
2. kinds of personal servitudes.
c. right of use
D. Real rights are binding on thing rather than just person.
1. ex. house with usufruct. House sold, but sold with usufruct
2. If contract creates a real right and is recorded in public
records, is biding on
3. Mortgage is a real right under category of “other” real
rights allowed by law.
article 3489. Gives mortgage company right to abusus should
E. Code limits modifications of ownership
1. Done because redactors wanted property freely available
in commerce and used to
its fullest economic potential. Would not happen if transfer
of rights not limited.
Property could just remain vacant and not in commerce.
2. Concept of economic utility outweighs concept of absolute
I. Patrimony is the total of one’s existing and potential
rights and obligations.
A. Abstract concept that is separate from the property IN
B. Sum of assets and liabilities.
C. Attributes of patrimony
1. attribute of the person
2. every real and juridical person has one.
3. is inseparable and indivisible from individual.
D. Law allows people to have distinct patrimonial masses
w/i a patrimony.
1. community property.
E. Can transfer individual items in a patrimony, but not
patrimony as a whole.
F. Reason for existence is successions.
1. Patrimony continues after death.
2. Changed in 1995. Patrimony abolished.
I. Introduced by statute. Is a division of rights not consistent
w/codal concept of ownership and its
1. Administers property for benefit of beneficiary.
2. trustee rights=legal title
3. beneficiary rights=equitable title
B. Trustee would be legal owner, but would have to use property
for benefit of ownership.
C. Beneficiary is owner w/o all rights associated with ownership.
Ownership in Indivision
I. Ownership in indivision is ownership of a thing by two
or more persons. (art 797) Unless otherwise
provided, ownership interest of all owners presumed to be
A. Undivided interest
1. Each owner has ownership rights in the thing, and no
one owner has exclusive right
of possession or use to the exclusion of another.
2. No coowner may exclusively use any part of co-owned property
3. Courts will not regulate use of property except in cases
provided for by law, mainly
where partition not available.
B. Right of Partition
1. Way to end ownership in indivision. Splits ownership
2. two ways.
a. partition in kind-thing divided with each owner getting
piece of thing
commensurate with ownership interest.
b. Licitation- court ordered sale with proceeds to be split
commensurate with their ownership interest.
3. Can be demanded by any owner at anytime unless prohibited
4. Where owners have rights to partition, but do not ask
for it, courts will not regulate
it. To keep property from lying dormant, first person to
use property exclusively may
not be ejected. Remedy of other owners is partition.
C. Statutory prohibitions of partition. (Art. 808)
1. partition excluded by agreement for period up to 15 years.
2. when thing owned is essential for enjoyment of ANOTHER
owned by one of the co-owners. (art 808)
LeBlanc v. Scurto: 3 coowners of piece of property (collection
of stores). used piece of property as thruway. one co-owner
started using as parking lot preventing use by two others.
Court regulated use of this property, which is counter to
LA jurisprudence. Done to prevent ecomonomic waste and promote
equal enjoyment among co-owners. Court can only determine
use and management of land when partition not available
and no agreement can be reached among owners. Art. 808 provides
that partition not available when thing owned in indivision
is necessary for enjoyment of another thing owned by one
or more co-owners. As alley was needed for access to shopping
center owned by three people, court ruled partition unavailable
and determined use of property.
Butler v. Hensley: P was undivided 1/3 owner of property.
P built fence around property. D. cut fence and put trailer
on property, ejecting P. P. brought an eviction suit. Other
co-owners leased property to D, which is invalid, because
not all owners agreed. D bought 1/10 undivided interest
in land. Court ruled that all coowners have equal right
to use land. No owner can use land to exclusion of another
owner. If one of the coowners is using land exclusively
and court cannot regulate its use, only remedy is partition.
Partition is available in this case, so judicial regulation
disallowed. Courts usually unwilling to let land stand vacant,
so party in exclusive possession usually allowed to remain
on property until partition effected.
Ben Glazer Co. Inc. v. Tharp-Sontheimer, Inc.: Wife of one
coowner of 7 burial plots died and husband buries her in
one of the plots. Four coowners of 7 plots. P wanted to
exhume dead wife due to burial w/o permision of family.
Again, when property cannot be used in agreement, partition
is ordered. Court left two dead parents in plot. divided
up the other five plots. Dead wife’s plot goes to husband.
Three other siblings get one plot each. One to be sold and
money divided equally.
I. Accession defined (art. 482)
A. Owner of thing owns all that it produces or is associated
B. Another right of ownership.
II. Rights of Accession (art. 483)
A. Owner of thing owns its fruits (art. 551)
B. Fruits are things produced or derived from thing that
do not diminish its substance.
C. Things that do diminish the substance of the thing are
still owned by the owner. (abusus)
D. Non-fruits=products (things that do not fit the definition
of fruits under 551).
Belong to owner. Usufructuary can have fruits, but never
products. (mineral rights)
E. Products are to be kept by owner (art. 488). Products
damage owner. Products cannot be
returned to owner.
F. If possessor in good faith acquires fruits, he may keep
them. If evicted, good-faith
possessor entitled to value of fruits unable to gather.
III. Limits on owner to keep fruits
A. Possessor in good faith has right to keep fruits (art.
B. This is so even over the rights of the owner of the land.
C. This is so because good faith possessor, by efforts,
kept land from being idle and vacant.
State wants land to be productive.
D. State implies more important to keep land active than
to enforce owner’s rights.
IV. Possessors in bad faith
A. Not allowed to keep fruits (2nd para. of art. 486)
B. If allowed, would encourage people to go around looking
for land to occupy and would do
so at the expense of rights of owners.
V. Possessor in good faith (art. 487)
A. When possesses by virtue of an act translative of ownership
(title, deed, will, etc.)
B. and knows of no defects in the title.
C. Ceases to be possessor in good faith when any defects
in title made known to possessor.
Elder v. Ellerbe: P claims undivided 1/2 interest in land.
D allows oil co. to drill. P. claims 1/2 of revenue. D claims
oil revenue are FRUITS. Court ruled that oil and mineral
rights were products. To drill or mine for them necessarily
devalues the land, thus, they are products, and, as such,
revenue belongs to owner. Judgment for P for 1/2 of oil
Harang v. Bowie Lumber Co.: D cut lumber from land of P.
Owner sues P for eviction and value of timber cut. Court
held that D was a good faith possessor, but trees are not
fruits under art. 486. They are, thus, products. The trees,
thus, remain propertyof the owner. D liable for value of
trees to P. Counter to art. 551 because trees are born and
reborn of the soil. 551 interpreted to mean things produced
w/i reasonable time.
VI. Accession in Relation to Immovable
A. art. 494. A person making something on an immovable with
the materials of another owns
the thing and may have to pay the owner of the materials
the fair value of it. Owner cannot
have materials back.
B. Done to prevent economic waste.
C. Laws of accession interpreted in such a way as to avoid
Marcellus v. David: D asked P to buy some land, D would
put the house on the land, D would live there rent-free,
and house would be willed to P. D moved house to other location
later. P sues claiming ownership of house since it was on
his land. Court held that the house belongs to D because
she did not sign and instrument donating house to D. Also,
art. 493 states that if house put on land of someone with
permission, ownership of house remains with owner. Do not
have to have a recordation under article 493 because parties
are aware of ownership.
VII. Possessor in Good Faith
A. Art. 496 Owner has to pay possessor in good faith for
value of constructions on land and
cannot demand their removal.
B. Construction w/i meaning of 496 probably means something
that involves economic waste to
C. All articles involving accession interpreted in such
a way as to avoid economic waste.
I. Possession (2 elements)
A. corpus: physical aspect, i.e. physical occupation of
land. Person having the corpus is a
B. animus: mental aspect, i.e. one must think that the land
is their own and use it as such.
it is shown by outward actions and displays.
C. To be a possessor, one must have both components of possession.
D. Possession requires use of a thing in an exclusive manner
as if the possessor were the owner.
E. Can show someone is not the owner by showing that possessor
is not using land in a manner
consistent with ownership.
F. A person can detain for another w/permission if the possessor
acknowledges ownership of
G. “Intent to possess as the owner” has nothing to do with
THINKING one is the owner. Rather
one intends to retain for self and not for someone else.
Harper v. Willis: Land in dispute is 1 by 2 mile plot of
land. P, local farmer, let cattle graze land. P also fenced
land. P got permission for grazing from owner’s caretaker.
P wanted to buy land, but was sold to D. P claims he is
possessor. Had a disturbance in law due to recording of
title. Court held P was not the possessor because he did
not have the animus. Stated in testimony that P knew he
was not the owner of land. That was enough to show absence
II. Possible rights of a Possessor
A. Possessory action- allows possessor to be maintained
in possession of immovable or to be
restored to possession. 4 requirements to win suit.
1. possessor had possession at time disturbance occurred.
2. he had such possession w/o interruption for more than
a year prior to disturbance,
unless evicted by fraud.
a. disturbance=loss or right to possess=ejected from land
not recover possession within one year.
b. right to possess=possession of land for longer than one
3. disturbance was one in fact or law (LA C.C. P. art. 3659)
a. disturbance in fact=ejection from land.
b. disturbance in law=possessor claims based on executed
4. Possessory action was instituted w/i one year of disturbance.
B. Petitory Action (very difficult)
1. To win, P will have to show a title that is good against
the world. Chain of
title from sovereign for someone in chain of title that
2. Brought by owner not in possession of land against possessor.
3. When one loses a possessory action, normally ordered
to bring petitory action w/i
60 days or be precluded from further claims/actions.
C. Possession can lead to ownership
1. of fruits (art. 486)(rights of possessor above owner)
2. or thing itself. (prescription)
D. Possession under CCP 3658(2) is not interrupted unless
possessor lost possession for more
than one year. Can, legally, lose possession, but possession
not be interrupted. Interruption
is the loss of the right to possess.
Auntulovich v. Whitley: P acquires property north of D’s
property. P surveys land and makes boundaries. D also gets
land surveyed, but mark is 100 feet onto land of P. D. builds
fence on new boundaries. P brought possessory action w/i
one year of fence going up. Disturbance in fact. Court ruled
for P. P showed that he had animus through use of land.
Also have to show enclosure when title is vague as to property
boundaries. P is clear possessor.
Rules: 1. Proof necessary for detention varies with type
of land. 2. have to show enclosure of land when title is
vague. 3. If title exists and only part of land is possessed,
possessor has constructive possession over entire lot of
Pure Oil v. Skinner: P had leases for oil on property. D
instituted concursus action and deposited oil royalties
in court. D claims he is owed royalties due to ownership
of land. P claims royalties based on possession. This case
shows how difficult it is to prove claim in petitory action.
Have to prove title good against the world. Once ownership
acquired through prescription, there is no paper title.
Tacking is allowed for petitory actions and prescription:
adding of years of possession from previous owners.
III. Disturbance that constitutes an eviction
A. Prevents person from having access to land.
B. Possessor has to recover land or bring suit w/i one year.
IV. Disturbance that does not constitute and eviction
A. Suit must be brought w/i one year even though neither
possession nor right to possess
Liner v. Louisiana Land and Exploration: Possessory action
by P. Title unclear as to part of land owned by P. Court
ruled that even though title was unclear, P was possessor
of land. D tried to equate disturbance with interruption,
and interruption does not occur unless possession lost for
more than one year. Remedy was to recognize P as possessor
and keep him in possession of land.
Manson Realty Co. v. Plaisance: P had lot in Elmwood subdivision.
P granted pipeline servitude. This case is constructive
possession, which is detention over part of the property
is tantamount to detention over all of property. This is
true when one has title to property. Pipeline company took
possession for P and occupied for P, thus, P was in possession
of his land. (art. 3437)
V. Acquisition of Possession
A. Possessor must have animus.
B. Some people, such as children or insane people, cannot
exercise animus. In these situations,
3rd persons allowed to exercise animus in the name of the
C. Corpus may be exercised by third person so long as that
person recognizes possessor’s animus.
D. Law allows person to pass rights of possession, but not
rights of ownership.
E. Possessor cannot sell thing possessed, but if they do,
they are actually selling rights of
VI. Loss of Possession
A. alienation (loss of detention)
B. abandonment (loss of animus)
VII. Civil Possession
A. Possession is retained by intent to possess as owner
even if corporeal possession ceases.
B. Only applies as long as property remains @ possessor’s
VIII. Vices of Possession
A. Possession cannot be equivocal, i.e. ambiguous.
1. usually arises in co-ownership cases.
2. If in precarious possession, law assumes you to remain
in that status until a party
proves a change.
B. Clandestine possession
1. Possession must be notorious.
1. If possession acquired through violence, cannot use this
possession as basis for
1. Occupation or possession over time.
1. Barring of action as a result of inaction over a period
2. Is a statute of limitations.
3. Catch all of 30 years for all non-delineated actions.
C. Prescription of Non use.
1. Mode of extinction of a real right other than ownership
for failure to exercise the
right for a period of time.
art. 493--governs detainers of land that are not possessors.
Buildings put on land w/consent of owner of land belong
to owner of building.
art. 496-Constructions by possessor in good faith. Owners
must pay for constructions by good faith possessors. NOTE:
where “buildings” is used in code, should be interpreted
to mean things that it does not involve economic waste to
Voiers v. Atkins Bros.: Bad faith possessor on P’s land.
Performs many acts illustrative of ownership. Bad faith
possessors only entitled to expenses that are necessary
for the preservation of the thing. Owners can elect removal
or pay for improvements. Court says owner does not have
to pay for anything inseparable from soil. Can order BFPs
to remove constructions or keep them and pay for them. Inseparable
X. Accession in Relation to Movables.
A. Owner of movable has to have a right of revindication
ot use these articles (507-516)
B. Adjunction: 2 things belong to 2 people and both people
claim their portion of new thing.
The owner is the owner of the principal thing.
C. Transformation: Someone uses someone else’s movable and
makes a new thing.
D. Fusion: Two liquid or dry things are paired together
and cannot be separated.
Modifications of Ownership
I. Modifications--Take one of the elements of ownership
and transfer it to another for the benefit of
A. Three ways to do this
1. Personal servitudes
b. right of habitation
c. right of use.
2. Predial servitudes
a. made for benefit of immovable property.
3. Others allowed by law
B. Only a certain number of real rights allowed.
1. This is limited so as to keep property available in commerce
C. To confer a real right, K has to be of a nature to create
a real right and that is gauged by
intent as shown by circumstances.
D. If there is doubt as to existence of real right, Courts
generally hold K to only confer personal
I. Involves a transfer of usus and fructus of a thing. (art.
A. Expires upon death of usufructuary.
B. Usus and fructus transferred together so as to encourage
development and commerce.
C. Real right upon the property of another.
II. Can concern consummables or nonconsummables.
A. Rights of consummable and nonconsummable usufructuaries
B. Usufruct of nonconsummable transfers only usus and fructus.
C. Usufruct of consumable transfers usus, fructus AND abusus.
D. Most usufructs come into being from Article 890 involving
Article 538: Duty of consumable usufructuary. Naked owner
becomes creditor of usufructuary. Usufructuary must give
to naked owner value of thing at beginning of usufruct or
a like thing in like quantity.
Article 539: Duty of nonconsummable usufructuary. Return
to owner at the end of usufruct. Cannot change substance
Article 536: Consummables: Things that are useless unless
consumed. Money, harvested agricultural products, food and
Article 537: Nonconsummables. Enjoyed w/o alteration of
their substance. Land, houses, shares of stock, animals,
Leury v. Mayer: P sued to be recognized as individual owner
of 1/2 undivided interest in 20 shares of stock sold to
D. P claims 1/2 of stock due to death of his mother. D claims
stock is consummable, thus, transferring ownership to P’s
father, thus, giving D complete ownership. 537 states that
shares of stock are nonconsummables. P’s father cannot sell
stock. P due 1/2 of stock and 1/2 dividends from father’s
Vivian State Bank v. Thomason-Lewis Lumber Co.: Certificates
of Deposit. Court ruled that since CD represented cash,
it is a consummable. Thus, usufruct of a CD is a usufruct
of a consumable which confers ownership subject to interest
of naked owner. Also includes savings accounts, promissory
Sparks v. Dan Cohen Co.: P’s are heirs to land leased by
D. P’s forefather dies. Does lease expire with usufructuary.
Court here ruled it did. When usufruct ends, so does lease,
because usufructuary cannot transfer more than she has,
i.e. usus and abusus for life.
Succession of Wengert: Wengert dies. Had 2nd wife and 2
sons. Left certain property to 2nd wife. Wife wants property,
but administrator says property owed to sons.
Gueno v. Medlenka: D is usufructuary of land. P’s are owners.
P gave mineral lease to someone. Court ruled that usufructuary
of land does not have right to diminish value of land. P,
the owner, does have the right to grant mineral leases as
long as usufructuary not disturbed. Now solved by '' 195&
196 of Mineral Code. Naked owner has right to do this, but
must pay usufruct for use of the land. Gives owners right
of appropriation against usufructuaries.
Succession of Doll: Case ruled that in timber cases, usufructuary
not entitled to fruits if trees take long time to grow.
If trees used as tree farm and replacement growth is quick,
then usufructuary is entitled to fruits.
III. Sale of usufruct.
A. One cannot sell more than one has. Usufructuary can only
sell usus and abusus, not
1. Some movables have equivalent of public records laws.
a. shares of stock
c. allows third person to acquire ownership if records not
IV. Rights and Obligations of Usufructurary.
A. Before usufructuary takes control of property, he must,
1. take an inventory--art. 570.
a. done because, in case of nonconsummable, owner wants
to know exactly
he is entitled to have returned.
b. in case of nonconsummable, wants to know value of thing
transferred so as
to be reimbursed.
2. Post security to act as prudent administrator--art. 571.
a. Value to be total value of thing--art. 572.
b. grantor may dispense w/requirement of security.
c. Legal usufructuaries do not have to pay security.
Succession of Carlisi: Husband dies, leaves usufruct to
wife, naked ownership to charity. Heirs want security posted.
Court ruled that since Husband did not dispense with security
as allowed by law, wife has to pay it. Must be will of husband.
Wife not legal usufructuary because husband had will.
V. Obligations of usufructuary during usufruct
A. act as prudent administrator.
VI. Alteration of Land by Usufructuary
A. Has to take into account the way the land is used @ time
the usufruct commenced. Given
usufruct of something as it was destined to be used by owner.
VII. Rights of the Usufructuary to Make Alterations
A. Has to meet art. 558 (act as prudent administrator)
B. Whether 558 is subject to 537 and 539. (obligation to
preserve substance of thing)
C. What is meant by “substance of thing”?
1. generally taken to mean the ease with which land may
be converted to its original use
D. Fact that some improvements are allowed by usufructuary
implies that he does not have to
return EXACTLY what was granted in usufruct.
VIII. Obligations of Usufructuary and Owner Concerning Repairs.
A. art. 577. Usufructuary responsible for ordinary repairs
and maintenance. Naked owner
responsible for extraordinary repairs.
1. Extraordinary repairs are those that require reconstruction
of the whole thing
or a substantial part of it.
2. Ordinary repairs are all those that are not extraordinary.
3. No one responsible if repairs are the result of age or
4. If it costs more to repair than item is worth, then can
probably say that
item is totally destroyed, which frees owner from repairing.
IX. Usufruct of consummable that is converted to a consumable.
A. article 568 allows usufructuary to dispose of corporeal
movables that are gradually and
substantially devalued over time through use, wear, and
decay provided usufructuary
acts as prudent administrator.
B. Done because even though nonconsummables, these things
lose substantial value over time.
C. Limited to appliances, equipment, and vehicles.
X. Expiration of Usufruct
1. If cannot return thing then usufructuary must pay owner
value of the thing at the
END of the usufruct.
1. Value at Beginning of usufruct.
C. Nonconsummables to consummables (art. 568)
1. value at disposition.
XI. Termination of Usufruct
B. 30 years for corp. or dissolution of corp.
C. Happening of a condition or expiration of a term.
D. Permanent loss or total destruction
E. Abuse of enjoyment.
F. May be terminated under 624, but owner may have to pay
annuity to usufructuary.
G. When property chaanges form through no fault of usufructuary,
article 614 governs.
usufruct does not end.
H. When property changes form through no fault of usufructuary,
article 615 governs.
Barry v. United States Fidelity and Guaranty: P in car crash
and husband was dead intestate. Wife owns 1/2 of car as
community property and children own other half as heirs.
Issue is whether wife can sue for all damages of car when
she only owns half. She also has usufruct of it for life
as surviving spouse. Article 614 allows money settlement
of accident that is 3rd person’s fault because of usufruct
of the money. This is case when usufruct of nonconsummable
changes to usufruct of consumable (car to money). Wife allowed
to keep all money: 1/2 as owner other half as usufruct.
Bond v. Green: Old people had usufruct of houses. Homes
were dilapidated. P tried to have D evicted because usufruct
destroyed when house destroyed. Court ruled 613 did not
apply because people had usufruct of house AND land. House
only PART of usufruct and it may not be terminated due to
destruction of PART of the property subject to usufrcut.
XII. Other personal servitudes.
A. Right of use
1. Only conveys usus or part of usus. If recorded, is binding
on third persons.
2. Right is heritable and transferable.
3. Governed by rules of usufruct under article 645.
4. May be extinguished by ten years non-use.
Aucoin v. Fontenot: D sold immovable property to P. Part
of sale reserved some offices for D’s use. Court ruled that
bathroom is not an “office”.
I. Predial Servitudes
A. Applies only to immovables
B. Right granted for benefit of dominant estate.
C. Cannot separate predial servitude from property.
D. When someone enters a K about use of property, court
can find three things:
1. personal servitude right of use
2. predial servitude right of use
3. Personal K between persons only
a. courts more likely to find K because to find servitude
would devalue land
and courts want land available in commerce.
E. Two estates necessary
1. Is a charge on the servient estate for the benefit of
the dominant estate.
F. Laws of immovables governs predial servitudes.
647: Must have benefit for dominant estate
650: Predial servitude inseperable from dominant estate
and passes with it. Partially perpetual. Lasts as long as
the owner of the dominant estate wants it to.
651: Owner of servient estate not required to do anything.
No affirmative burdens allowed. May be required to perform
706: Predial servitudes are either positive or negative.
Allows dominant estate to do a thing on servient estate
or prevents servient estate from doing something on his
II. Types of Predial Servitudes
1. Set up by operation of law. Parties not required to do
anything. If in situation
described by law, then servitude exists.
1. Usually of drain.
2. Higher estate has right to drain into lower estate.
1. Created through power of K.
2. also by prescription
3. also by destination
D. Exercise of servitude is considered possession of servitude.
Jeanin v. Deblane: D built wall 13 inches onto property
of P. P did not contribute money toward wall, so has no
interest in it, and it is not a common wall.
Rockholt v. Keatz: P is suing for servitude of passage for
enclosed land to public road over neighbor’s land. Court
ruled property was enclosed under article 689, thus, giving
P right of passage. Must be shortest route possible and
to a public road.
Levet v. Lapeyrollerie: B set up servitude to let C set
up drainage. was done for 13 years. D claims got servitude
by prescription. Court ruled no, because no act translative
of title present. Must wait 30 years. Same rules for prescription
of land apply to predial servitudes.
Kelly v. Pippitone: Driveway partially on Lot A and Lot
B. In 1922, Kelly sells house (lot B) to Facione. In 1924,
F. sells to D. D erected fence down middle of driveway.
Today this would be a right of passage. In order to have
servitude by destination, have to have common owner of two
estates and creates a situation that would be a servitude
with two different owners. Not present here. Law changed
#I. Ownership in General (CC 477-482)
A. Ownership (CC 477) Ownership is the right that confers
upon 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. Code defines ownership and allows owner to split
his rights in certain ways.
1. Why does owner have an exclusive right? B/c the state
will enforce it (by law)
2. In property, a right is a relationship to an object that
the state will enforce (exclusive).
3. Right of ownership; the owner has three rights to a thing:
(1) The right to use and enjoy the property
(1) The right to the “fruits” produced by a thing without
diminishing its substance within a reasonable time. 2 types:
i) Civil: Revenues such as royalties, interest or dividends
ii) Natural: Fruits that are derived from nature; minerals
are not fruits
c. Abuses: The right to alienate and encumber the property
4. Full ownership = Usus, Fructus & abuses
5. Only persons may own things (CC 479) Only a natural or
juridical person may enjoy the right of ownership
6. Ownership Distinguished from Possession (CC 481) Ownership,
unlike possession, exists independently of any exercise
of it and is not lost by nonuse. Of course ownership can
be lost if acquisitive prescription runs in favor of an
B. Co-Ownership (CC 797): Ownership of the same thing by
two or more persons is “ownership in division”
1. Rights & duties of Co-Owners
a. Fruits & Products: CC 798; Co-owners share the fruits
& products of the co-owned thing in proportion to their
b. Use & Mananagement of the Co-Owned thing
(1) Generally: Co-owners may use & manage the co-owned
(a) By agreement (CC 801)
(b) By destination (CC 802); According to the destination
of the thing. (However, a co-owner cannot prevent another
co-owner from making use of the thing
(c) By court order (CC 803): When partition is not available
& the co-owners cannot agree on the use or management
of the thing, a court may determine it’s use or management
upon petition of a co-owner.
(d) Butler v Hennesley: A co-owner cannot evict another
co-owner b/c they all have equal rights to the property.
CC 797 & 802
2. Partition of Co-Owned Property CC 807
a. No one can be compelled to hold property in division
with another person unless (a) the contrary has been agreed
to or (b) it is provided by law.
(1) Voluntary Partition CC 809: Generally all co-owners
can agree on the mode of partition, if not a co-owner may
demand judicial partition
(2) Judicial Partition
(a) Partition in Kind CC 810 If the thing can be divided
into lots of nearly equally value, the court shall decree
a partition in kind. Expert makes a proposed division and
the parties draw lots
(b) Partition by Licitation CC 811 When the thing cannot
be partitioned in kind, it is partitioned by public auction
or private sale and the proceeds are distributed to the
a. Succession of Miller 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 it’s use or
management upon partition by a co-owner. The ct held in
Miller that the executor could regulate use of a the “black
sheep co-owner” since partition was not available and parties
couldn’t agree. CC803 Court order
b. Glazer v Tharp Ct held that exhuming the bodies from
the burial plots would be against public policy. When a
co-owner has permanently damaged the right of another co-owner,
each co-owner is entitled to a partition. Court ordered
partition in kind.
C. Rights of Accession: (CC 482) Accession is the right
which the owner of a thing has to that which the owned thing
produces or unites with.
1. Owner’s Rights to Fruits (CC 483): The owner of a thing
acquires the ownership of it’s natural and civil fruits
in the absence of other persons
2. Possessor’s Rights to Fruits (CC 487)
a. Right of a Good Faith Possessor CC 487: A gf possessor
owns the fruits that he has gathered
(1) Right to reimbursement CC487: A gf possessor does not
own ungathered fruits but he is entitled to reimbursement
of expenses for ungathered fruits
b. Right of Bad Faith Possessor CC 486: A bf possessor must
restore the fruits he has gathered (or their value) subject
to his claim for reimbursements of expenses.
3. Products (CC 488)
a. Unlike fruits; products are a diminution of the substance
of a thing;
b. Products belong to the owner
c. Reimbursement Rights: A good faith possessor (not bad
faith possessor) is entitled to reimbursement for expenses
for products derived from the thing
a. Elder v Ellerbe: Possessors in good faith are entitled
to fruits. Ellerbe, the possessor in good faith claims possession
to lucrative land with oil. Ellerbe uses CC 485; Possessor’s
right to fruits but this doesn’t work because oil is not
a fruit but a product. Products belong to the owner CC 488.
A possessor in good faith has the right to reimbursement
for expenses for products. CC 487
b. Harang v Bowie Lumber: P seeks to recover value of forest
timber cut & taken by the D from a tract of land P owns.
Timber = product; the key is production & re-production
within a reasonable time frame. A fruit = born & reborn
of the soil without hurting the substance of the land. Since
the timber is a product, P can recover the value or the
timber but will have to reimburse D for expenses.
D. Accession in Immovables (CC 490)
1. Generally: Unless otherwise provided by the law, the
ownership of a tract of land carries with it the ownership
of everything that id directly above or under it.
a. Ownership of improvements (CC 491 & 493) The code
permits separate ownership of improvements namely buildings,
other constructions permanently attached to the ground standing
timber & unharvested crops & ungathered fruits.
(1) Proving separate ownership (CC 493) Proving separate
ownership of things (building, other constructions, etc)
turns on the person against whom the claim is made the claim
(a) Claims against owner of the ground If the claim is made
against th person who owned the grounded at the time of
the improvements were made, the builder must prove that
the landowner consented to the improvements. If the landowner
did not consent, then the improvements belong to the landowner.
(b) Claims against 3rd parties
i) Consent of the landowner
ii) Must file an instrument evidencing separate ownership
in the conveyance records of the parish in which the immovable
is located. (CC 491) In the absence of such an instrument,
3rd persons relying on public records are entitled to assume
e that these things are component parts of the ground. VETTER:
If you buy land with a house on it, you can presume that
the house belongs to the owner of the ground UNLESS separate
ownership is recorded. This is to protect 3rd parties.
(a) Marcellus v David: House on piers; easily movable. 80
yr old mother (David) moved her house to daughter’s lot
with understanding that daughter would get the house in
her will. Mother got mad and moved house to another lot.
Daughter claims ownership of the house because CC 491 presumes
that the house (a component part) on her land belongs to
her. Ct held that the house belongs to mother because the
ownership of the house was not transferred to the daughter.
Thus, the mother overcame the presumption in CC 491.
(3) Claims - One who has lost ownership of a thing to the
owner of an immovable may have a claim against him or a
3rd person in accordance with the following. CC 493.2. Note
that any claims against 3rd persons are subject to PRD.
(a) Constructions by Landowner with Materials of Another
(CC 494) When the owner of an immovable makes on it constructions,
plantings or works with materials of another he may retain
them, regardless of his good or bad faith, on reimbursing
the owner of the material their current value & repairing
the injury he may have caused to him.
i) Vetter’s example/Bricks: The owner of property steals
the bricks from another. The brick owner wants to sue the
owner to get the bricks back. The brick owner can get the
value of the bricks but not the bricks. Social policy -
Tearing down a house would not make sense economically.
Everything produced adds wealth to the community. Time,
labor, etc is all lost if the building is torn down.
ii) NOTE: a boat is not a “construction or work” within
the meaning of CC 494. You can take the boat back without
causing economic waste
iii) A shed that can be moved is not a construction within
CC 494. It’s like the house in Marcellus v David; it must
be recorded in PRD as a separate immovable or CC 491 provides
that the owner of the ground is presumed to be the owner.
(4) Right of Separate Owner to Remove Improvements
(a) Right to remove (CC 493 para 2) When the separate owner
of improvements no longer has the right to keep them on
the land of another, he may remove them subject to his obligation
to restore the property to it’s former condition
(b) Failure to remove (CC 493 para 2) If the separate owner
does not remove within 90 days after written demand, the
landowner acquires ownership of the improvements & owes
(5) Constructions by Possessors
(a) Good faith Possessors (CC 496) When constructions, plantings
or works are made by a possessor in good faith, the owner
of immovable may not demand demolitions & removal. Owner
is bound to keep them and at his option to pay the possessor
a) cost of the materials or
b) current value of the thing or
c) enhanced value of the immovable
(b) Bad Faith Possessor (CC 497) When constructions, plantings
or works are made by a bad faith possessor, the owner of
the immovable may either
a) demand demolition & removal at possessor’s expense
& get damages or
b) keep & pay either
i) current value or
ii) enhanced value
(6) Necessary Expenses (CC 527) The evicted possessor in
good or bad faith is entitled to recover from the owner
necessary expenses incurred for the preservation of the
thing. He is not entitled to recover expenses for ordinary
maintenance or repairs.
b. 3 types of Improvements (Constructions or works) CC 497
(1) First determine whether the improvement is
(a) separable or inseparable
i) Separable improvements that do not involve economic waste
ii) Separable improvements that do involve economic waste
iii) Inseparable improvements that can’t be demolished;
ex: ditches; clearing timber
(a) Voicer v Atkins Bros: D went on P’s land and made improvements
1) repaired fences CC 527; 2) made ditches (CC 497); 3)
placed low cisterns (CC 497); 4) built cabins & a shed
and 5) cleared timber. D was in bad faith so the court holds
that he can recover for the following:
i) Fences: D recovers from fences (CC 527) b/c it is an
expense recoverable for gf and bf possessors.
ii) Ditches: D cannot recover for the ditches b/c ct classifies
them as an “inseparable improvement”; if owner decided to
keep ditches and ditches were separable, owner would have
to reimburse D. NOTE: GO possessor get reimbursed for separable
& inseparable improvements if the owner keeps it.
iii) Cistern: “inseparable improvements”; p doesn’t have
to pay bf possessor
iv) Cabins & shed: separable improvement that can be
removed so P has to pay D for it’s current value or enhancement.
v) Cleared timber: D argues this is necessary expense (CC
527) but ct says it is an “inseparable improvement” so D
does not get reimbursed.
vi) RULE: BF possessor can get reimbursed for necessary
expenses (CC 527) or separable improvements that the owner
decides to keep (CC 497).
b) Sanders v Jackson Boundary dispute b/t PD. Ct finds D
in good faith. D did landscaping and built a pond on P’s
property. Ct classifies the landscaping, pond & dam
as useful expenses but P didn’t have to reimburse D b/c
these expenses did not enhance the value of the land.
E. Real rights:
1. Real rights are modifications of ownership that are allowed
by the civil code. Real rights are transfers of elements
a. Real rights are right in things not rights against a
person b/c part of an owners right has been transferred
b. Real rights are binding on subsequent owners
c. DO NOT CONFUSE real rights with personal rights. Personal
rights are binding on a person only.
2. 3 requirements for real rights to be binding on 3rd parties
(1) is legally permissible? (Does it fit any of the allowable
(2) Was it the intent of the owner to create that right?
(a) Must be very clear and refer to code articles when you
intend to create a real right
(b) The presumption is that a personal contract was created;
not a real right
(3) Recordation: Real rights must be recorded by the person
to whom the right is given.
(a) A stock certificate is not binding on 3rd parties unless
the current owner’s name is on it.
3. A PERSON CANNOT TRANSFER RIGHTS THAT HE DOES NOT HAVE
4. If the object of a right is immovable property, the law
requires a written instrument which must be recorded in
PRD to be effective against 3rd parties.
5. 3 Kinds of real rights
(1) Personal servitudes CC 534 A personal servitude is a
charge on a thing for the benefit of a person; 3 types of
(2) Predial servitudes CC 646: A predial servitude is a
charge on a servient estate for the benefit of a dominant
(3) Other real rights
F. PERSONAL SERVITUDES
1. 3 Types of Personal Servitudes
(2) Right of Use
2. Usufruct - CC 535:Usufruct is a real right of limited
duration. Usus and fructus transferred to ufy. The holder
of the usufruct has the right to use the property and to
enjoy it’s fruits and owes certain obligations to the naked
(1) CC 605 - Naked owner may not interfere with rights of
3. Three basic types of usufruct
c. Nonconsumable that may be converted to a consumable
(1) Consumables (CC 536) Consumables cannot be used without
being expended or consumed.
a) Money and things like money -
b) CD's, negotiable securities (legislature made this decision),
c) harvested crops, stock of merchandise, foodstuffs, and
(2) Nonconsummables (CC 537) Noncomsummables are those things
used without alteration of their substance, although it
may be diminished or altered naturally by time and the use
to which they are applied.
a) Lands, houses,
b) shares of stock,
i) stock non-consumable b/c it's not useless b/c dividends
may be collected on it. Stock exception - if name of current
owner of stock isn't on certificate, it isn't binding on
c) animals, furniture and vehicles
(3) Nonconsumable that may be converted to a consumable.
(CC 568) Applies to certain corporeal movables that are
gradually and substantially impaired by use, wear or decay,
such as equipment, appliances and vehicles.
a) May be converted to a usufruct of money.
b) Ufy must return to n.o. value of item when converted
from a non-consumable to a consumable.
4. Rights & Duties of Usufructuary (CC 550 - 569; 568)
a. Usufruct is entitled to fruits (550)
(a) Fruits defined (CC 551)
i) natural - fruits that are derived from nature
ii) civil - revenues which as royalties, interest or dividends
(b) Usufruct gets the right to fruits on beginning date
of usufruct (CC 554)
b. Usufructuary of consumables becomes owner of them.(CC
538) Naked owner becomes creditor to usufructuary.
i) UFY must return value things had at beginning of usufruct
of things of same quality and quantity
a) Ufy must pay the no the value of the consumed items or
b) Replace them with like things of same quality & quantity.
c. Usufructuary of nonconsumables is not owner of them.
(CC 539) Ufy has right to possess them and derive the utility,
profits, and advantages they produce, under the obligation
of preserving their substance.
a) He is bound to use them as a prudent administrator and
deliver them to the naked owner at the termination of the
d. Usufructuary of nonconsumables that may be converted
to a consummable
(a) Restoration of things gradually impaired (CC 569) -
If ufy doesn't dispose of them, he must return them to n.o.
in current state at end of uft.
a) UFY relieved of this obligation if things are entirely
worn out by normal use, wear, or decay.
b) Ex: If ufy A sells an old car to B, A is responsible
for returning the value of the car at the time he sold it
to naked owner. Similar to ufy of consumables - must return
to naked owner the value the consumables had at the time
c) Ex: If ufy A transfers all his rights to B, than B must
return the car to naked owner when uft ends (when A dies,
for example) or, if B sells the car, the value of the car
when he converted it
e. Sources of usufruct - Usufructs are created by juridical
acts (conventional) or acts of law (legal)
(a) Usufruct of surviving spouse CC 890 "Family Home"
usufruct - when deceased spouse doesn't make a will covering
his/her part of community property.
i) Deceased spouse must have descendants
ii) No will exists disposing of deceased's share of community
i) iii) Community property. Spouse gets usufruct of deceased
spouse's share of community property until he/she remarries,
unless confirmed by testament for life or a shorter time.
(HOW IS THIS A LEGAL USUFRUCT IF A TESTAMENT EXISTS?)
(b) Parental Usufructs on minor (CC 223)
(c) Parent’s usufruct in child’s estate (CC 226)"Hollywood"
usufruct - no ufy rights to anything child earns himself.
May have rights through tutorship or guardianship, though.
(2) Conventional - will or other juridical act.
(a) May limit time of usufruct,
(b) expressly add mineral rights to usufruct, or
(c) dispense with inventory and security requirements.
(d) Ends at death of ufy if not otherwise stated.
(a) Gaspard v Coco ½ rents due
i) CC 554 - Ufy’s right to fruits begins on effective date
ii) CC 556 Fruits accrue day by day
a) Difference between a right of ufy of nonconsummable (something
that produces money) and money (consummable). Under uft,
money from consumable must be given back at end of the uft.
b) Rent = civil fruit; she had to pay the naked owner the
rent money that she had usufruct over.
(b) Leury v. Meyer - Dad had 890 usufruct. He sold stock.
Ct. found stock nonconsumable (now it in the code), so children
could get back ownership of stock, but not dividends on
stock because they are fruits subject to Dad's usufruct.
(c) Vivian State Bank v. Thomason-Lewis Lumber - Mrs. T.
pledged CD to bank as security for loan. PLEDGE: a real
right. Pledgor transfers part of abuses - gives someone
else authority to sell thing if necessary. Also part of
usus is transferred because pledgee keeps pledge until pledgor
redeems or forfeits it. Delivery, not recordation, is essential
element of pledge.
(d) Sparks v. Dan Cohen - UFY leased building to store.
When ufy died, heirs notified store that lease was terminated.
Store said they didn't know she was ufy. Major factor: Records
in conveyance office showed she was ufy. only. (What is
on records is not necessarily correct, remember)
a) CC 607. Right of usufruct ends at death of ufy.
b) CC 567 - contracts ufy made end when uft ends.
(e) Succession of Wengert - Conventional, not 890 usufruct.
Father sold stock -under 2315 he must repair the damage
he caused; thus, his estate must return value of stock AT
TIME USUFRUCT ENDS, not value of stock when sold. The court
didn't enforce this; it was wrong and the children's lawyer
was asleep here.
a) had conventional usufruct, not 890. Thus, father didn't
have to repay rent derived from community property after
g. Other Rights of Usufructary
(1) Improvements & Alterations (CC 558) Ufy may make
improvements at his cost w/ written consent of n.o. If he
won't consent, ufy may make repairs a prudent administrator
would make after notice to n.o. and permission from court.
Uft must pay for this.
(2) Trees, stones & other materials (CC 560) Uft may
cut trees and use stones and sand, but only for his use
or improvement or cultivation of land.
(3) Mines & Quarries (CC 561) ufy rights to mines and
quarries governed by Mineral Code.
(a) Gueno v Medlenka Ufy & naked owner each lease land
to different oil producers. Naked owners wins b/c it’s over
minerals. Ufa’s are only entitled to products of mines already
in production when uft begins.
i) Can naked owner search for products on land of uft? Yes.
Judge incorrectly applied analogy principle, stating that
naked owner had right to go on land to make ordinary repairs
and by analogy he could also go on to search for minerals.
However, analogy only applies when there is a gap in the
ii) Here there is no gap, naked owner may not go on land
subject to uft (CC 605). The judge made the right decision
(keeping land in commerce) but for the wrong reasons
iii) The legislature has made an exception to this principle
in Art 195 & 198 of mineral code The naked owner can
drill for oil as long as he doesn’t infringe on uft’s enjoyment
iv) Naked owners can
i) grant servitudes
ii) make alterations
(b) Usufruct of Timberlands (CC 562) When uft involves timberlands,
Ufy must manage them as a prudent administrator. Proceeds
of timber operations derived from proper management belong
a) Kennedy v Kennedy The LA Sup Ct defined “timberlands”
as land capable of producing timber in paying quantities,
and permitted the ufa to initiate farming operations on
the property. On rehearing, the ct ruled that the ufa could
clear cut a portion of the land b/c clear cutting was the
only reasonable way to convert the land into timberlands.
The naked owner is better off if the land is clear cut;
uft is acting like a prudent administrator.
i) NOTE: Ordinarily the uft of land does not include the
right to cut down trees b/c trees are products; not fruits
ii) Timberlands = fruits because they can be produced and
reproduced within a reasonable time
h. Obligations of a Usufructuary (CC 570-587; 593-606
(1) Vetter: If naked owner (client) is worried about the
usf, he should record it; this protects both parties
(2) Inventory (CC 570) Ufy must have inventory made of prop.
subject to usufruct. Need to know:
a) what nonconsumables are in uft and
b) value of consumables
ii) Naked owner may prevent ufy from taking possession of
property until it is done
iii) Not making an inventory does not result in loss of
right to fruits or enjoyment of uft from its creation unless
it is a parent's usufruct of minor child's property.
iv) If property is in ufy's possession, n.o. may demand
inventory at any time.
v) 890 usufruct spouses not exempted. Same rules apply
(3) Security (CC 571): Ufy shall give security that he will
use property as a good administrator and fulfill all obligations
of law or act that granted usufruct unless security is dispensed
(4) Amount of Security (CC 572) Security is amount of total
value of property subject to the usufruct. Court may increase
this or reduce it, but no less than value of movables subject
to the usufruct.
(5) Dispensation of Security (CC 573) Security may be dispensed
by grantors of uft or law. LEGAL UFYs and sellers or donors
of property under uft don't have to give security. Stops
donors of land from having to give security to donees.
(a) Testamentary release from security must be express.
Succession of Carlisi
(b) Naked owner may renounce right to security. If he neglects
to ask for it, he may demand it at any time.
(c) If ufy delays in giving security, n.o. may refuse delivery
of property. Must hand over fruits from commencement of
uft whether or not ufy has paid security.
(d) If ufy doesn't give security, court may order property
delivered to administrator. Administration terminates when
uft gives security.
(a) Sucession of Carlisi: Widow claims she was given usufruct
by operation of law. She didn’t want to pay security. Ct
held that widow got usufruct in a will; this is not by operation
of law Testamentary release from security must be express.
Widow had to pay security.
(7) Hypos with general principles of rights and duties of
(a) Can ufy use antebellum house for warehouse if naked
owner doesn't agree?
i) House is non-consumable. Ufy must be a prudent administrator
ii) What is prudent?
a) Professor says it is getting the highest and best use
of the property. Mostly an economic decision. To decide,
call real estate appraisers or business mgrs. to testify
as to highest and best use of property. Professor thinks
this use would be prudent b/c it affords a 10X increase
b) However, many would argue that 558 (prudent improvements)
is conditioned by 539 - ufy's obligation to preserve substance
of nonconsumable. Would intended use change substance?
c) TEST FOR PRESERVING SUBSTANCE: DOES THE INTENDED USE
INTERFERE WITH THE THING'S ABILITY TO BE USED AS IT WAS
BEFORE UFT? WHAT IS THE EXPENSE AND EXTENT OF WORK NEEDED
TO CHANGE PROPERTY BACK TO ORIGINAL FORM?
d) If ufy is going to restore it at end of uft and makes
a surety bond to do so, then n.o. must allow it. Otherwise,
it is a change in substance and court will rule for n.o.
e) May argue that 558 isn't conditioned by 537 and 539.
i) See comment (a) of 558 - states that nothing else is
mentioned as influencing it.
ii) It hasn't been decided by S.C. Professor thinks 558
(b) Can ufy change cane farm to orange grove?
i) Land non-consumable. Must be prudent administrator.
ii) 10X increase in income is prudent. Is it changing substance
iii) Apply test for altering substance. How feasible (expensive
and extensive) will it be to make it a sugar cane farm again?
a) If it is a change in substance, ufy can't do it even
if he will take responsibility for changing it back after
iv) Cane to soybeans - not change in substance, only change
i. REPAIRS - GENERAL PRINCIPLES 577, 578, 583.
(1) Apportions responsibility for thing according to who
will receive the benefits
(a) Naked.owner. - long-term benefits, pay long-term costs.
(b) Ufy - short-term benefits, pay ordinary expenses and
(2) Standard of care (CC 576) Ufy answerable for losses
due to fraud, default or neglect. Ufy must exercise care
that an attentive and careful man exercises in mgmt. of
his own affairs. Includes even slight fault.
(3) Liability for Repairs (CC 577) Ufy is responsible for
ordinary repairs and maintenance, whether need arises from
accident, normal use or fault or neglect of ufy..
(a) Naked.owner. responsible for extraordinary repairs,
unless they are necessary due to fault or neglect. Then
ufy is responsible for them.
(4) Ordinary & Extraordinay repairs (CC 578) Extraordinary
repairs - reconstruction of whole or substantial part of
property. All others are ordinary repairs.
(5) Right of action for repairs (CC 579) Naked owner MAY
compel ufy to make ordinary repairs.
(a) Ufy may NOT compel n.o. to make extraordinary repairs;
ufy may make them on his own and will be reimbursed w/o
interest at end of usufruct.
(6) Reimbursement for necessary repairs (CC 580) If n.o.
incurs expenses for necessary repairs after uft begins but
before ufy takes over; he must be reimbursed by ufy. N.o.
may keep property until he gets reimbursed.
(7) Liabiltiy for necessary expenses (CC 581) Ufy is responsible
for expenses necessary for preservation and use of property
from commencement of uft, even if he's not in possession
of property yet
(8) Abandonment of usufruct (582) The ufy may relieve himself
of the obligations of making ordinary repairs by abandoning
(9) Ruin from accident or decay (CC 583) Ruin from accident
or decay. Neither ufy nor n.o. is bound to restore property
that has been totally destroyed through accident or because
(a) If n.o. decides to restore, he must do so w/in reasonable
time and in way least onerous for ufy.
(b) CC 613 applies here b/c uft over when item destroyed.
i) COMMENT C: If property has been partially or totally
destroyed by ufy, he must repair. If 3rd party, uft attaches
to damage claims.
(10) Hypo: C has usufruct of car. He brings it back to n.o.
with everything worn out. Who, if anyone, must repair car?
(a) Are repairs ordinary or extraordinary?
i) If extra, n.o. is responsible
ii) If ordinary, ufy.
(b) In this case, the car seems totally destroyed. TEST
FOR TOTAL DESTRUCTION: Compare how much it costs to repair
vs. value after repairs are made.
i) If totally destroyed, how did it become destroyed?
a) (583) Repairs not mandated from either n.o. or ufy if
thing is destroyed due to age or accident b/c (613) usufruct
ii) If destruction is due to neglect or fault of ufy
a) 583, comment c:, ufy is responsible for repairs.
b) If third party, uft attaches to claim for damages.
iii) CC Articles 569, 577, 613 all work together.
a) If car is totally destroyed, then uft ends and no one
has to repair
b) . If car is wrecked, but not totally destroyed, then
the uft continues on whatever remains of the thing. Ufy
will owe either item itself back at end of uft or,
c) if conversion is possible under 568, then value of item
j. Termination of Usufruct (CC603-630 & 568)
(1) Death of Usufructary (CC 607) Usfruct terminates upon
death of usufructuary, even if the uft was given a term
of years; uft is not heritable.
(2) Dissolution of legal entity; thirty year limitation
(CC 608) Usufruct ends at the end of 30 years.
(3) Usufruct for a term or under condition (CC 610) Usufruct
terminates at end of term
(4) Renunciation; rights of creditors (CC 626) Uft terminates
by an express written renunciation
(5) Prescription of nonuse (CC 621) Includes uft over consumables
even thought uft is technically owner. Uft terminates for
if ufy doesn’t use it for 10 years.
(6) Abuse of enjoyment (CC 623) Altering substance not making
ordinary repairs, not paying taxes will terminate a uft.
(7) Consequences of abuse (CC 624) Ct may terminate a uft
for CC 623 abuses or may deliver property to naked owner
on the condition he shall ufy a reasonable annuity until
end of uft. Ufy may prevent termination by giving security
to unsure he will take corrective action within period fixed
k. Consequences of termination
(1) Consequences of termination; usufruct of nonconsummables
(CC 628) Must return thing or current value of thing if
it can't be returned.
(2) Consequences of termination; usufruct of consummables
(CC 629) Things of same quality or quantity or value of
things at commencement of uft.
(3) Disposition of nonconsummable things; payment of tax
(CC 568) Certain movables only - ufy has right to change
to uft of a consumable by selling.
(4) Restoration of things gradually impaired (CC 569) If
not changed to consumable, things must be returned to n.o.
in their current state. If things are entirely worn out
through use, wear, or decay, they don't need to be returned.
(5) Rights of action for repairs (CC 579) If n.o. won't
make extraordinary repairs, ufy may make them and be reimbursed
without interest at end of uft
(6) Ruin from accident or decay (CC 583) If item is totally
destroyed through accident or use, neither party must repair
(7) Loss, extinction or destruction of property (CC 613)
Uft terminates due to permanent and total loss, extinction,
or destruction of property through accident or decay.
(a) Usufruct terminates only if loss is total; and only
if it is the result of an accident.
(b) If due to fault of ufy or naked owner, usufruct continues
to exist and consequences of loss are determined by delictual
obligations or obligations of ufy and n.o.
(c) If due to third party, uft attaches to claim for damages
due from wrongdoer.
(a) Barry v. USFG - Usufruct of car totally destroyed by
D attaches to claim for damages. Hard choice as to who to
award damages to -
i) ufy is deprived of use and enjoyment of thing for life
ii) n.o. is deprived of ownership of car and return of thing
at end of uft.
ii) Legislature has decided with 614 - ufy gets current
value of thing and returns it at end of uft.
(b) Bond v. Green - Naked.owner attempted to evict ufy when
termite-ridden house fell down.
i) Land was part of uft - wasn't destroyed, so uft continues
ii) Bringing trailers in on land allowable under uft. PROCESS:
a) Land is nonconsumable.
b) Use must be prudent under 558
iii) Arguable that this is even an alteration or improvement,
but if it were found to be, the court would probably allow
it as prudent.
a) Is improvement alteration of substance? Probably not.
b) Could rent out trailers, b/c it isn't an alteration of
iv) 623 gives n.o. right to terminate uft for breach of
duty under any article.
a) It doesn't have to be included in each specific article.
b) Only includes SERIOUS violations of obligation to preserve
i) Not paying $46 property tax not serious enough to warrant
loss of uft.
G. Habitation & Rights of Use
1. BOTH HABITATION AND RT. OF USE ATTACH ONLY TO BUILDINGS
AND/OR LAND (Corporeal immovables). Usufruct only servitude
that applies to movables.
a. Habitation - 2nd personal servitude
(1) Habitation (CC 630) Habitation is a nontransferable
real right of a natural person to dwell in the house of
(2) Establishment & Extinction (CC 631) Created and
extinguished same as usufruct. However, this is never created
by operation of law, so only created by juridical act.
(a) Requires a written instrument, b/c it involves immovable
(3) Regulation by title (CC 632)Habitation regulated by
title creating it. If title is silent, look to 633-635.
(4) Persons residing in the house (CC 633) Person not married
at time habitation was granted may live in house with his
(5) Extent of right of habitation (CC 634) Has exclusive
rt. to house and may receive guests, friends, and boarders
(6) Degree of care; duty to restore property (CC 635)Prudent
administrator and must deliver back to owner in same condition
as he received it, wear and tear excepted.
(7) Taxes, repairs & other charges (CC 636)If occupying
entire house, is resp. for all ordinary repairs, taxes,
and other annual charges same as ufy. If only part of the
house, ordinary repairs to it and proportionally for other
expenses and charges.
(8) Nontransferable & nonheritable right (CC 637) Non
transferable and non-heritable.
(9) Duration of habitation (CC 638)Ends at death of person
having servitude unless a shorter time is stipulated.
(a) Lease situation not habitation; lease is an "honorary
H. Right of use - 3rd personal servitude
(1) Right of use (CC 639)Aright of use is a specified use
of an estate less than full enjoyment.
(2) Persons having servitudes (CC 641) May be established
in favor of a natural person or legal entity.
(3) Extent of the servitude (CC 642)Includes all rights
necessary for its enjoyment at time of creation as well
as other rights that may become necessary.
(4) Transferable right (CC 643) Right of use is transferable
unless prohibted by law.
(5) Heritable rt. (CC 644) - Transferable rt.
(a) Has potential to tie up land perpetually (hinders commerce).
Thus, courts are quite stingy about finding right of use
personal servitude v. personal contract.
(b) Isn't extinguished by death of right holder. Goes to
heirs unless limited in agreement.
(1) LP&L v. Holmes - St. Julien Doctrine. If private
corp. has power of expropriation and it sets up a servitude
across land and owner acquiesces, a limited personal servitude
is created. Still binding on third parties even though not
recorded b/c it wasn't based on a writing but on permission.
SJD no longer exists unless servitude was granted prior
to 1950. From now on, if power company wants a servitude,
they must get written permission & record it
(a) Right of use expanded to take the place of limited personal
servitudes that no longer exist.
(b) Limited personal servitudes were set up to solve the
30-year expiration problem of rt. of use (that then existed)
for utility companies.
(c) Vettor argues that rt. of use should have been left
alone and limited personal servitudes should have been created
for special circumstances. Instead, rt. of use was made
heritable and transferable
(2) CC 645 Regulation of the servitude Rt. of use governed
by rules governing usufruct and predial servitudes to the
extent they are compatible w/ rules governing rt. of use.
(a) A gives B a rt. of use to his pool. B records it. A
sells to X does X have to let B use his pool? Yes.
(b) Can X get rid of pool? No. 645 - All usufruct rules
apply, including 605 - naked.owner. cannot interfere with
enjoyment of uft. 621 - uft 10-yr prescription rule applies
1. Generally: (CC 646) A predial servitude is a charge on
a servient estate for the benefit of a dominant estate
2. 3 Types of Predial Servitudes (CC 654)
a. Natural Servitudes: Arise from natural situation of estates.
b. Legal Servitudes: Imposed by law
c. Conventional Servitudes: Established by juridical act,
prescription or destination of the owner
(1) CC 647: Requirement of Benefit to a Dominant Estate:
A benefit must exist to a dominant estate. Benefit to make
the dominant estate more exploitable. Code liberal in finding
(2) CC 650 Requirement of Dual Estates
(a) A predial servitude is inseparable from the dominant
estate and passes with it.
(b) The predial servitude continues as a charge on the servient
estate when ownership changes.
(3) CC 651 Nature of Obligation Imposed by Predial Servitude
A servitude may no impose affirmative duties on the servient
estate. Must merely keep estate in suitable condition for
the exercise of the servitude.
(4) CC 652 Indivisibility of a Servitude Servitude may be
limited to certain days or hours. If dominant estate is
divided , each acquirer may use servitude in its entirety.
(a) CC 747 limits CC 652 - Provided that there is no additional
burden imposed on servient estate.
(5) CC 653 Division of Advantages Advantages from servitude
may be divided if susceptible to division.
(a) ex: 2 owners share right to graze 100 cattle - each
my graze 50.]
(6) Hypo: A gives B permission to cross A's land. If A sells,
does B have a cause of action?
(a) What kind of agreement is it? a. personal contract b.
personal servitude - rt. of use, depending on intent of
(b) If personal contract, B has no cause of action against
buyer. Might have cause of action against A if contract
was for a term and term wasn't up yet
d. RULES OF INTERPRETATION - implemented when type of servitude
is not expressly stated.
(1) CC 733 Interpretation; benefit of dominant estate When
the right is of the nature to confer an advantage on an
estate, it is PRESUMED to be a predial servitude. If in
doubt, assume predial servitude
(2) CC 734 Interpretation; convenience of a person When
right merely given for right of person, it is personal unless
person got it as owner of estate for himself, his assigns
(3) Hypo - A gives B, whose property is landlocked, permission
to cross his land.
(a) What kind of agreement is it? personal contract, personal
servitude, or predial servitude?
i) Decide by intentions of parties
ii) .If court finds a servitude was intended, it will be
a predial servitude b/c it benefits the landlocked estate,
not just B.
(4) Hypo: A gives B permission to swim in his pool, and
says it is a real right
(a) What kind of agreement is it?
i) Must be either personal or predial servitude, b/c it
specified it was a real rt. In this case, two arguments:
i) Is a personal servitude b/c it doesn't benefit B's estate,
ii) Is predial servitude b/c it does benefit B's estate
- gives it the advantage of a pool. Also because a strict
reading of benefit is not correct.
(5) Hypo: RR sells land to buyer with stipulation that any
timber cut from land must be shipped out on seller's RR.
Says agreement is binding on 3rd parties.
(a) What kind of agreement is this?
i) Can't be predial servitude b/c it creates affirmative
duty on buyer, and also b/c RR may or may not be dominant
ii) Not right of use personal servitude b/c there is no
use of buyer's estate - only agreement to ship timber cut
iii) Not a personal contract b/c they said it was binding
on 3rd parties and personal contracts aren't.
iv) Does RR have a right against buyer? Probably not, b/c
they didn't create any allowable real right.
3. Natural Servitudes: CC 654 Natural servitudes arise
from the natural situation of estates
(1) Natural Drainage (CC 655) An estate is bound to receive
the surface waters that flow naturally from estate above
unless the flow has been created by man. Act of man - only
means making the land higher
(2) Obligations of Servient Estate (CC 656() Owner of servient
estate may not do anything to prevent flow of water. Dominant
estate may not do anything to render servitude more burdensome.
(a) Broussard v Cormier Two rice farmers; Example of Code
interpretation. Court interpreted burdensome in light of
the code goal of keeping things in commerce. Decided legislature
didn't mean servitude may never be made more burdensome.
Servitude must not be made "unreasonably burdensome"
a balance of good of society against burden on individual.
i) In this case, court held that for agricultural purposes
one can make servitude more burdensome. Water came from
irrigation of rice underneath the soil so it didn’t flow
naturally onto the earth.
ii) Should have argued that the irrigation water from outside
was not naturally flowing. See below.
(b) McFarland v. Jennings - Waters that flow naturally
are subject to servitutde. Oil mixed with salt water was
draining from adjacent property.
i) Ct said that oil was not naturally flowing b/c it came
from under the earth so it wasn’t covered by the servitude.
ii) Ct. said oil was not "Naturally flowing" b/c
it came from under earth
iii) Today, McFarland would be decided differently b/c oil
(c) Adams v. Town of Ruston - Swimming pool water draining
across land. Ct. said it wasn't more burdensome. P's atty.
should have used "naturally flowing" argument
of McFarland, but didn't..
(d) HOW TO HARMONIZE TWO CASES? WHAT DOES FLOWS NATURALLY
i) Legislature added word "surface" to article
in response to one Ct. App. decision.
a) Now, naturally flowing water is surface water.
b) It is not logical - water from bayou might be allowed,
but water from well might not.
ii) Determine whether you have waters that flow naturally?
a) Determine by the use of the major economic activity in
b) If it is waters flowing naturally, you cannot do anything
to render the condition more unreasonable burdensome
c) Weigh the economic activity vs whether they are doing
more than is customary.
b. Legal Servitudes CC 659
(1) Keeping Buildings in Repair (CC 660) The owner is bound
to keep building in repair so that it will not fall and
cause damage to a neighbor or passerby.
(2) Building in danger of falling (CC 661) True predial
servitude; when building is in danger of falling, neighbor
has a right of action to compel the owner to have it properly
supported or demolished. The ct may authorize the neighbor
to do the work and get reimbursed.
(3) Building near a wall (CC 662) One who builds ear a
wall, whether common or not is bound to take all necessary
precautions to protect his neighbor against injury.
(4) Projections over buildings (CC 663) A landowner may
not build projections beyond the boundary of his estate.
(a) Vetter: not necessary article b/c it is a violation
of CC 76; right of ownership to extend roofline over your
(5) Limitations on use of Property, (CC 667), Inconvenience
to neighbor (CC 668), Regulation of inconvenience (CC 669)
Tort Doctrines for property; can use CC 2315 instead.
(6) Legal public servitudes (CC 665) Servitudes imposed
for the public or common utility,
(a) relate to the space which is to be left for the public
use by the adjacent proprietors on the shores of navigable
(b) for the making and repairing of levees, roads and other
public or common works
i) Servient estates - shoreline properties on navigable
ii) Dominant estates - public
iii) Allows space on estate for works of a public or common
utility dealing with repairs or building to a levee or roads
(a public or common work, which means it must deal with
use of navigable rivers or flood control); and any other
public work dealing with use, navigation or commerce on
public waters or flood control
iv) Public or common work has special meaning in code -
must relate use of navigable waters or flood control.
(a) Devoke v Yazoo Ct said there was a nuisance with chemical
fumes coming out of plant. This is a property issue not
a tort issue; can’t use CC 2315
(b) Hero v Texaco Texaco had a right of use servitude to
install a pipeline on other person’s land. This servitude
limited the economic value to their property. Hero must
show damages/causation. On rehearing, ct held that Hero
showed “ultra hazardous activity” for damages.
i) This changed in 1996 from “ultra hazardous activity”
to “he knew or should have known - Negligence.
ii) If you want to use CC 667 to recover under “”ultra hazardous
activity”, you are limited to pile driving or blasting with
iii) Sometimes you need to use CC 2315 when trying to prove
“ultra hazardous activity” Vetter: CC 667 - 669 are not
(8) Banks of Navigable Waters & Streams (CC 456) Banks
of navigable rivers private property subject to public use.
(a) Bank - land lying between low and high water marks of
(b) Nevertheless, if levee is there, levee forms bank
i) Comment (b) Public use in this article means purposes
that are "incidental" to navigable character of
the stream and its enjoyment as an avenue of commerce.
i) Loyola crawfish boil? Probably not
ii) Longshoreman's strike? Ct. said no, but only 2-1 vote
iii) Unloading books - ?????
(9) Common wall servitude (CC 673) Common (party) wall
servitude. (9-inch servitude)
(a) Comment c - Done to conserve land, labor and materials
and encourage the improvement of urban property.
(b) Applies in two instances:
i) neighboring estates not currently surrounded by walls
ii) or a wall exists at or near property line
(c) Servient & dominant estate - potentially every estate
in LA unless exempted.
(d) Content - First person to build wall may rest ½ of a
partition wall on neighbor's land if
i) he uses solid masonry at least as high as the first story
ii) wall width doesn't exceed 18 inches, not including plastering
which may be no more than 3 inches.
iii) 12-inches total maximum.
(e) Comment d - can do this if neighbor has merely built
fence or wooden wall at or on property line.
i) However, if a brick or stone wall is already built within
9 inches of property line, a wall under this article is
ii) Pre-existing wall may not be made common
(10) Contribution by neighbor (674) Wall becomes common
if neighbor wishes to pay ½ costs. If not, he can make wall
common at any time by paying ½ current value of wall.
i) Comment c - Cannot make use of wall unless you get permission
of neighbor or demand wall be made common (and pay).
ii) Comment d - Owner of wall may demand reimbursement if
neighbor makes any use of wall or obtains any advantage
from it, other than natural consequence of the wall's existence.
Must not be based on any action on neighbor's part.
(11) Presumption of Party Wall (CC 675)Wall separating adjoining
buildings and partly on two estates is presumed to be common
up to highest part of the lower building unless proven to
(a) If contradicted by actual facts, then this article doesn't
(b) If evidence shows one building was built after other
building, presumption doesn't apply.
(c) Comment c - wall separating building from a yard or
garden not presumed common.
(12) Adjoining Wall (CC 676) If masonry wall adjoins but
is not on neighbor's property), neighbor may make it common
by paying half current value of wall plus half value of
soil on which wall is built.
(a) Comment e - If wall is one inch back from boundary,
then it may not be made common.
i) Thus, for all intents and purposes, common wall servitude
is limited to
i) instances when neighboring estates are not already surrounded
by walls or
ii) there is a wall at or on the property line.
(b) Argument: If foundation is on property, may make wall
a common wall b/c the foundation may not be located there
without a party wall servitude
(13) Rights & Obligations of Co-owner of Party Wall
(CC 677) If no ordinances control, the following provisions
(14) Cost of Repairs (CC 678) Repairs are made at expense
of owners in proportion to use.
(15) Abandonment of common wall (CC 679) Co-owner may abandon
wall by writing to other owner, if no construction of his
is actually supported by common wall. (Olsen v. Tung)
(16) Rights in Common Walls (CC 680) Co-owners may use common
wall as they each see fit, if he does not impair its structural
integrity or infringe on rt. of neighbor
(17) Opening in Common Wall (CC 681) May not make opening
in wall w/o consent of neighbor.
(18) Raising the height of common wall (CC 682) & Neighbor’s
right to make the raised part common (CC 683) May raise
wall if it can support extra height.
i) Person who raised is solely responsible for maintenance
and repair of raised part.
ii) If neighbor wants to use it, he must pay ½ current value
of raised part.
(a) Jeanin v DeBlanc P has ½ of wall with openings on her
land. D can see through the wall to P’s property. P sues
to make D close the windows There is a servitude of view
(CC 707) - windows in a common wall is an apparent servitude
- can’t block window until you have a servitude.
i) Ct says no party wall b/c P didn’t make it a party wall
by paying for ½ of it. P can make it a party wall by using
CC 674 - then she can say no right to have the window in
the party wall
c. Other legal servitudes:
(1) Common Fences (CC 685) Fence presumed common unless
otherwise proven. One estate can compel neighboring estate
to share in costs of fence built on property line if it
results in other party's lot being enclosed. Can't collect
until land is enclosed, even if it isn't until a long time
(2) Common Ditches (CC 686) Ditches presumed common also.
Both owners responsible for maintenance
(3) Trees, bushes & plants on the boundary (CC 687)Plants
on boundary presumed common unless otherwise proven. Adjoining
owner may demand removal of plants that interfere w/ his
enjoyment, but at his expense.
(4) Tree Branch Servitude (CC 688)Adjacent owner may demand
all branches or roots that extend over or into property
be trimmed at neighbor's expense, but only if they interfere
with adjacent owner's enjoyment of his property.
d. Right of passage - Enclosed Estates
(1) Right of passage for Indemnity (CC 689) An owner of
an estate that has no access to a public road may claim
a right of passage (for indemnity) over neighboring property
to the nearest public road
(a) servient estate - neighboring estate that offers shortest
and most convenient route to road.
(b) dominant estate - landlocked estate.
(c) content - right of passage when your estate is enclosed.
Rockholt v. Keaty
(a) Rockholt v. Keaty Rockholt’s land became landlocked
by I-12 being built. La Sup Ct held that Rockholt was on
an enclosed estate. CC 679 - Rockholt could use the shortest
route & the location least injurious to the neighboring
J. Conventional or Voluntary Servitudes
a. CC 707 Classification of Conventional/Voluntary Servitudes
i) juridical act
i) ii) acquisitive prescription or
iii) destination by owner
b. CC 707 Conventional servitudes may be
(1) Apparent: Servitudes evidenced by a roadway, window
in a common wall or aqueduct
(2) Nonapparent: Prohibition on building on an estate or
of building above a particular height. No exterior existence.
c. Conventional Servitude by Acquisitive Prescription:
Method of gaining ownership or other real rights of immovables
a) 4 requirements for 10 year acquisitive prescription:
i) Just title: an juridical act sufficient to transfer ownership
ii) Possession of 10 years
iii) Good faith
iv) A thing susceptible of acquisition through acquisitive
(b) Respect for commerce trumps property rights
(c) Prescription helps make ownership certain b/c records
get lost, stolen or destroyed
(d) This helps clear up titles and protect innocent buyers
a) Requirements for 30 year acquisitive prescription
i) Possession for 30 years
ii) No just title
iii) No good faith
(e) Filing suit interrupts prescription. Prescription interrupted
when one acknowledges a right of person against whom he
had commenced to prescribe.
(f) Check PRD for Conventional servitudes but also check
site for any apparent servitudes.
a) C gives A just title to apparent servitude on Lot 2.
After 10 years & having just title. A gets the servitude
b) If you don’t put in the contract that the person does
not have a servitude, the servitude is created. Example:
A covered up ditch before C bought the property from B.
It was uncovered for 31 years. This is a non-apparent servitude
He has acquired the servitude of drain with 30 year prescription.
Once acquired, he still has it even though it is not in
PRD. Probably could get a claim against B for not disclosing
it. Looking up in PRD does not guarantee that you are not
buying property with servitudes
(h) Establishment of predial servitude CC 708: Vetter says
this is wrong. Servitude is not “alienation a part of the
property”. Servitude doesn’t mean you own the land; it means
that you have a right to use the land.
(i) Naked Owner can establish servitude CC 710 - Naked Owner
can establish servitude with permission from the usufruct;
the servitude cannot infringe on usufructuary’s rights.
(j) Usufructurary (CC 711): Ufy may not establish a servitude.
(k) Usufructurary (CC 735): Ufy may acquire a servitude
by acting in the name of the owner or on owner’s behalf
(l) Co-owner (CC 715) A co-owner may establish servitude
with consent from other co-owners.
(m) Property Burdened with Servitudes (CC 720) The owner
of the servient estate may grant other servitudes if they
do not interfere with existing servitudes
d. Conventional Servitude by Destination: Method of gaining
ownership or other real rights of immovables without title.
(1) When 2 estates cease to belong to the same owner, an
apparent servitude comes into existence as of right and
a non-apparent servitude if owner has previously recorded
(a) Palomeque v Prudhomme Prudhomme wants to build 2nd story
in french quarter building which would block Palomeque’s
windows. Palomeque claims that Prudhomme cannot do this
b/c Paolmeque has a servitude of light & view. Window
in a party wall is an apparent servitude. (NOTE: check servitudes
when buying a house with windows in party wall; there could
be servitude by prescription). Palomeque claims that he
has acquired an apparent servitude by prescription. Ct held
that Paolmeque did not have just title b/c there was no
transfer of servitude of view. Even if former owner had
sold him servitude of view over Prudhomme’s property; could
he reasonably think that former owner could have transferred
of dominant estate could have transferred this? No. - this
would have been just title & bad faith - no prescription.
(b) Kelly v Pippitone There was an agreement between Kelly
& Faciane a right of use to use the common driveway.
Kelly’s son (not the owner) granted this servitude. The
agreement confers an advantage on each estate - each estate
is dominant and each estate is servient b/c they are using
each other’s property. When Pippitone bought property from
Facciane,Pippitone mentioned that he didn’t want an agreement
with the driveway like Facciane’s. The servitude was not
included in the title agreement when Pippione bought the
a) The court held that it was a personal contract between
Kelly & Facciane; not a servitude. Kelly was not in
the position (not an owner) to grant a servitude. Vetter:
Court looks at the intent of the parties to distinguish
between a personal contract and a predial servitude.
b) Ct will use CC 734 Interpretation; convenience of a person
when the right is for convenience of someone. Courts will
use CC 734 to show that the party’s only intended a “convenience”
(a personal agreement) because servitudes are heritable.
K. Building Restrictions
1. Building restrictions (CC 775) are charges on immovable
property that are imposed in pursuance of general plan that
governs building standards, specified uses & improvements
a. Building restrictions are not predial servitudes because
they have affirmative duties
(1) pay dues
(2) buy stocks incorporation
b. Rule governing predial servitudes govern building restrictions
unless they are incompatible with the nature of the building
1. Possession Defined (CC 3421) Possession is the detention
or enjoyment of a thing that one holds or exercises by himself
or by another who keeps it in the possessor’s name
a. To acquire possession one must have (CC 3424):
(1) Animus: Intent to possess as owner and
(2) Corpus: Take corporeal possession (physical holding)
of the thing
b. To acquire the right possession one must have corpus
& animus for 1 year(CC 3421)
c. Possession leads to ownership of
(1) fruits and
(2) the thing itself (Acquisitive prescription for 10 yrs
or 30 yrs; same rules apply to immovables; possessor can
get acquisitive prescription for a movable in 3 years.)
d. Possessor is holding a thing in an exclusive manner
and carrying it out in the same use & enjoyment as if
the owner (Planiol) Animus is presumed where a detainer
acts like an owner - the detainer becomes possessor. (Planiol)
e. Possessor doesn’t have to think he is the owner; just
the intent to possess as owner
(1) pens from supply cabinet. Vetter takes them home, throws
them away. He has the intent to own. He also has the corpus
(2) eraser: no intent to detain it so other’s can’t use
it. His detention of the eraser is not possession. Must
have intent to hold it on your account and not someone else’s
g. Disturbance in Possession
(1) Disturbance in fact - Eviction; building fence or run
(2) Disturbance in law - Recordation which asserts right
h. Loss of Possession (CC 3433) Possession is lost when
(1) manifests his intention to abandon it or
(2) when he is evicted by another force or usurption
i. Loss of Right to Possess (CC 3434) The possessor loses
his right to posses if evicted for a year. This is an interruption
not Webster’s definition b/c it is final
j. Possessory Action (La Code of Civil Procedure 3655) an
action brought by a possessor to recover possession when
his possession has been disturbed
(1) Possessor must have possession for 1 year
(2) Must have possession of immovable property or real right
at the time of the disturbance
(3) Must file while the possession is lost, if you wait
until it is interrupted, you can’t file a possessory action;
must be within one year of the disturbance.
k. Remedies for Possessory Action:
(1) Possessor’s right to possess is recognized
(2) Ct orders person to stop disturbing possession
l. Petitory Action (La Code of Civil Procedure 3662) An
action that can only be asserted by the owner.
(1) Difficult to prevail on petitory action; must prove
good title back to King of France or
(2) Prescription (through tacking if necessary)
(1) Harper v Willis P brought possessory action claiming
possession of land. Before a subdivision, P was told that
he could run his cattle. P asserts disturbance because Willis
recorded title (disturbance in law). Harper lost because
the ct found that he never possessed as owner on his own
account. Harper appeared to be possess on someone else’s
(2) Autulovich v Whitley: Boundary D painted trees, leased
mineral rights and cut timber. This all amounted to a disturbance
on P’s property. P had blazed property line done by surveyor.
Enclosure depends on nature of the land; this was heavily
wooded area. The ct held that blazing the line was sufficient
for enclosure and gave possession to P.
(3) Pure Oil v Skinner P asserted a petitory action against
D. P had a 16 year gap in title b/t 1858 - 1874 so the court
awarded the property to D. This case shows how difficult
it is to win on petitory action when using title. Must prove
back to the King of France.
(4) Liner v La Exploration: Liner had been in possession
since 1869. Liner brings a possessory action; La Exploration
claims he doesn’t meet CC 3658 para 2 ; that Liner lost
his right to possess because they interrupted it between
1971 & 1972. La Exploration disturbed his possession
a number of times; example La Ex built a ditch, Liner used
it; La Ex removed bulkheads; Liner put them back; La ex
put up stakes; Liner removed them. The court held that these
acts of disturbance do not amount to a “loss of possession”
since he didn’t let a year pass by. A disturbance that doesn’t
amount to an eviction is not a loss of the right to possess.