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Real Estate La Civil
| Question | Answer |
|---|---|
| may be animate or inanimate, but they can be seen, felt or touched, such as land or buildings | Corporeal things |
| may be understood or comprehended by the mind or thinking. Rights are always incorporeal and include rights of inheritance, servitudes, and obligations | Incorporeal things |
| are owned by individuals, other private entities such as corporations, limited liability companies, limited liability partnerships, or by the state or the government. | Private things |
| may not be owned by anyone. These include the air and the high seas | Common things |
| are those things owned by the state or the local government. | Public things |
| Examples include running water, navigable waters, the seashore, streets, and parks. Public things are available to the public for use, such as fishing, boating, driving, etc. However public places may be subject to the police powers of the municipality | public things |
| Some private things may be subject to public use, such as | river banks or sidewalks. |
| If there is a levee then the levee is considered to be the bank of the river, if not, the bank is | the land lying between the natural high and low points of the water. |
| In Louisiana real property is divided into two categories: | movables and immovables. |
| Immovables consist of | land, and its component parts such as buildings, timber, and unharvested fruits and crops when they belong to the owner of the land. |
| Separate immovables include | buildings and standing timber when they belong to a person other than the owner of the ground. |
| Movables by anticipation include | unharvested fruits and crops when they belong to a person other than the owner of the land. |
| Incorporeal immovables | All rights and actions that apply to immovables are classified as incorporeal immovables. |
| Examples of incorporeal immovable. | Predial servitudes such as natural, legal, or conventional servitudes, Personal servitudes established on the immovable, usufruct, habitation, and rights of use. Also included in this classification are mineral servitudes, royalties, and mineral leases. |
| Corporeal movables | Corporeal movables are things, whether animate or inanimate, that move or can be moved from one place to another. |
| The classification of corporeal movable includesRights, obligations, and actions that apply to a movable thing are incorporeal movables. The classification of incorporeal movables includes such items as stocks, bonds, and annuities. | building materials gathered for the construction or the erection of a new building, even if they came from the demolition of an old one. |
| materials separated from a building for purposes of repair, with the intention of putting them back, remain . | immovables |
| Component by incorporation includes | things attached or incorporated into a building or other construction. They become component parts of the structure. This includes building materials. Once incorporated into an immovable, the thing becomes an immovable. |
| Component by attachment: | Things are considered permanently attached to a building or other construction if they cannot be removed without substantial damage to themselves or damage to the immovable to which they are attached. |
| Things that are considered permanently attached to a building include such things as plumbing, heating, cooling, electrical, or other installations. | Component by attachment: |
| Things that would otherwise be classified as immovable may be classified as movable. | Component by declaration and registry |
| 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. must be filed for registry in the conveyance records of the parish | Component by declaration and registry |
| Mobile Homes In order for a mobile home to be considered an immovable, a declaration | stating that it will remain permanently attached to the land must be filed in the public records of the parish in which the land is located. The wheels must be removed, the tongue cut off, and it must be tied down. |
| A manufactured home may be deimmobilized by detachment or removal. But, to affect third persons, an authentic act of sale or mortgage or sale with mortgage must be filed in the appropriate mortgage and/or conveyance records | Detachment Sale |
| RIGHTS IN IMMOVABLES LOUISIANA'S BUNDLE OF RIGHTS | (Abusus, Usus, Fructus) |
| is the right that confers on a person direct, immediate, and exclusive authority over a thing. The owner of a thing may use, enjoy, and dispose of it within the limits and under the conditions established by law. | Ownership |
| Louisiana law divides ownership into three categories: | 1, Usus 2. Fructus 3. Abusus |
| The right to use a thing, and to exclude other from using it. | Usus |
| The owner of a thing owns the fruits produced by the thing that come from exploiting and enjoying the thing, such as rents and royalties and natural fruits such as crops and timber. | Fructus |
| is the right to alienate or dispose of the thing. It includes consuming it, giving it away, selling it, and encumbering it by mortgage or pledge. | Abusus |
| A person who owns both the usus and the fructus owns the usufruct. | Usufruct |
| Naked Ownership is The owner of | the abusus, |
| A servitude is a charge on a thing. There are two kinds of servitudes: | personal servitudes and predial servitudes. |
| There are three kinds of personal servitudes: . A. . The | usufruct, habitation, and right of use |
| Personal servitude can be compared to the Common Law | easement in gross. |
| is a real right of limited duration on the property of another. It is similar and may be compared to a "life estate" in the common law, but it is not identical. | Usufruct |
| is similar and may be compared to a "life estate" in the common law | Usufruct |
| Things that can be enjoyed without altering their substance, such as land, houses, or livestock, are . | nonconsumables |
| The usufructuary does not have the right to dispose of non-consumables, unless | that express right was granted to him. |
| Conventional Usufruct: | is one that is created by an act. |
| Legal Usufruct: | is one that is created by operation of law. |
| terminate the usufruct. | Death of the usufructuary; usufruct is held by a legal entity which ceases to exist |
| I. Personal Servitudes | A. Usufruct B. Habitation C. Right Of Use |
| is a nontransferable real right of a natural person to dwell in the house of another. | B. Habitation Habitation |
| the personal servitude of habitation may not be | alienated, let, or encumbered. |
| I is a charge on a servient estate for the benefit of a dominant estate and i | I. Predial Servitudes |
| s similar to easement appurtenant under the common law. | A predial servitude |
| It is inseparable from the dominant estate and passes with it. The right cannot be sold or encumbered separate from the dominant estate. | A predial servitude |
| A property which lies at a lower elevation will naturally receive surface waters flowing from an adjoining property which is at a higher elevation. This running water may be used, but not stopped, nor diverted. | Natural Servitudes |
| are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons. | Legal servitudes |
| this right is limited by his responsibility to not damage a neighbor. | Legal Servitudes |
| wall is one which rests half on one property and half on an adjoining property. | Party Walls |
| The first person to build a wall may build half of the wall on a neighbor's land, if | the first story is constructed of masonry not over eighteen inches in width and three inches of plaster. |
| To become a common wall, the neighboring landowner must pay | one-half (1/2) its current value. |
| An owner without access to a public road may claim a right of passage to the nearest public road; however, he must pay for the damage occasioned as a result. C. | Enclosed estate |
| A predial servitude may be created by contract, that is by agreement of the parties. Examples of conventional servitudes would be the rights of passage, projection, view, etc. | Conventional Servitudes (Voluntary) |
| A servitude may be acquired by acquisitive prescription, that is by peaceable and uninterrupted possession of the right for | ten (10) years in good faith and with just title or by uninterrupted possession for thirty (30) years without good faith or just title. A predial servitude may be lost by nonuse for ten (10) years. |
| BUILDING RESTRICTIONS govern building standards, uses, and improvements. | Building restrictions |
| Building restrictions | are enforced landowner in the subdivision filing suit in court to obtain an injunction. The violator may also be sued for damages. |
| If no termination date or other provision appears in the act creating the restrictions, building restrictions may be terminated or amended as follows: 1. | After the restrictions have been in effect for fifteen (15) years, the agreement of owners representing more than one-half the land area (excluding streets and rightsof-ways); or 2. By the agreement of both (a) owners representing two-thirds (2/3) of th |
| If a homestead is sold at the sheriff’s sale, the homeowner is assured that his homestead will sell for more than | $25,000.00 and that the owner may retain or receive the first $25,000.00. The right to a homestead may be waived. In any Voluntary Act of Mortgage, the act itself will invariably contain a clause in which homestead rights are waived. |
| By operation of law, the homestead exemption is waived if, | if the mortgagor is single. |
| is ownership by two or more persons, each having an undivided share, often called an undivided interest. The share or interest can be in any proportion, as stated in the contract and may be acquired at different times and by different methods. | Co-ownership |
| Each owner may exercise all rights of ownership of his undivided interest, subject to legal and conventional limitations, without consent or knowledge of his co-owners. | Co-ownership |
| Matrimonial Regime | Community Property |
| The fruits and revenues of separate property, unless specifically reserved as separate property by the spouse are. | community property |
| In order to reserve the fruits of separate property as separate property, | a declaration must by made by affidavit and recorded in the parish where the separate property is located. |
| T/F: There must be no commingling of the fruits with community property, that is funds must be in a separate bank account. | True |
| In Louisiana, a limited partnership is often called | a partnership in commendam. |
| The partnership must be recorded with the ? in order to be effective against third parties. | Secretary of State |
| If the partnership agreement was not in writing, the partners own the immovable . | individually |
| The Louisiana Condominium Act sets forth numerous provisions affecting | the acquisition, ownership, alienation, and management of property which forms part of a condominium. |
| Donations take effect in two forms, namely, | donations inter vivos and donations mortis causa. |
| There are three types of inter vivos donations: 1. | Gratuitous Onerous - 3. Remunerative |
| is a gift made without condition. | A gratuitous donation |
| donation is burdened with charges imposed upon the donee, or person receiving the donation. | Onerous |
| -donation is made to repay the donee for services rendered. If the value of the donated thing must be substantially greater than the amount of the remuneration, or it would be a sale rather than a donation | Remunerative |
| A donor may revoke a donation for several reasons, including | ingratitude by the donee, nonfulfillment or non-performance of conditions, or conventional return. A donation in the chain of title, then, is a potential title problem. |
| will which is written dated, and signed by the testator or testatrix in his or her own handwriting. | Olographic |
| will is one which is written, usually typed, and signed by the testator in the presence of a notary and two witnesses. It is | Notarial |
| similar to what was previously known as the statutory will. | Notarial |
| is the acquisition of the willed property, or succession by the legal heir or the testamentary heir, and it occurs immediately upon death, even if the heir does not know of the death. | Seizin |
| is the process of transmission of the estate of a decedent to his successors. It also refers to the specific legal proceeding filed to recognize successors and place them in possession. | Succession |
| There are two types of successions: | testate and intestate. |
| Legatees are | testate successors |
| If there is no will, the children inherit the | full estate of the deceased person, and the spouse retains usufruct. |
| Forced heirs are the children of the decedent who at the time of the death of the decedent are: 1. | Twenty-three (23) years of age or younger ( or under 24); or 2. Any age, but because of some mental incapacity or physical infirmity are permanently incapable of taking care of their persons or managing their property; |
| Right of Accession | the ownership of everything that it produces or is united with it, naturally or artificially. |
| Mineral rights transfer with the land unless stated in the contract. However, if mineral rights are retained by contract, they may only be retained for | ten years if there is no activity. |
| If a good faith possessor makes constructions, plantings, or works, he may recover | the cost of materials and the workmanship, their current value, or the enhanced value of the immovable. The possessor may not be forced to demolish or remove the improvements. |
| Bad faith possessor If a bad faith possessor makes the improvements, the owner of the immovable may: | (1) keep them or (2) demand their demolition and removal at the possessor's expense and (3) recover damages. If he keeps the improvements, he must pay the possessor the current value of the materials and the workmanship or the enhanced value of the immova |
| is the natural build up of soil along the bank of a river or stream, whether navigable or not. The alluvion belongs to the owner of the bank, subject to public use. There is no right of alluvion on the shore of the sea or lakes. | Alluvion |
| is formed by water receding from a river or stream. The owner of the land situated at the edge of the bank left dry owns the dereliction. There is no right of dereliction on the shore of the sea or lakes. | Dereliction |
| When the sudden action of water carries away an identifiable piece of ground and unites it with other land on the same or opposite bank, the owner does not lose the property, if | he claims it in writing within a year, or if over a year, he may claim the land if another owner has not taken possession. |
| When the sudden action of water carries away an identifiable piece of ground and unites it with other land on the same or opposite bank,This is called ? in the Common Law states. | avulsion |
| If a navigable river or stream abandons its bed and opens a new one, the owner of the land on which the new bed is located | takes ownership of the abandoned bed (proportionate to the land he lost). If the river returns to its old bed, the owner takes ownership of his former land. |
| The riparian owner on a non-navigable river or stream owns to | the middle of the bed (in the absence of title or prescription). |
| Condemnation is the Common Law term describing the use of the power or right of eminent domain. Louisiana uses two terms: | (1) expropriation and (2) appropriation. |
| is the authorized judicial taking of private ownership rights upon payment of just compensation. It is a synonym for “taking”. | Expropriation |
| is the action which is authorized by the right of eminent domain. Compensation must be made to the owner of the property being taken. | Expropriation |
| is the unauthorized use by the government to deprive an owner of his property without conforming to law. | Appropriation |
| is also used to describe an exercise of public property rights, without paying compensation, pursuant to the inherent police powers of a government, recognized by the courts as valid. | Appropriation |
| Expropriation for state highway purposes is a comparatively short, litigation process. | Quick taking |
| The owner has ten (10) days to protest based on the lack of public purpose with little chance of success. If not satisfied with the compensation, however, | the owner may contest the amount of compensation and is entitled to a trial by jury. |
| is the exercise of physical acts of use or enjoyment. Examples are residing in a house, cultivating land, building fences, and other similar activities. | corporeal possession |
| When a person possesses part of an immovable, he is deemed to have ? of the entirety of the property within the limits of his title. In the absence of a title, a person possesses only the area in which he exercises actual physical possession. | Constructive possession: |
| Ownership of immovable property may be acquired by possession for a period of time called ? | acquisitive prescription. |
| The prescriptive period for Good Faith possession is ? if it was ? | ten years; continuous, uninterrupted, peaceable, public, and unequivocal and in good faith at the time possession commenced. |
| Bad Faith possession is ? Requirements for possession in bad faith include possession are the same as for good faith except that the person claiming ownership does not believe that the land is his. | thirty years. |
| is a legal relationship whereby a person (called the obligor) is bound to render a performance in favor of another person (called the obligee). | Obligation |
| is the person bound by the obligation. | Obligor |
| is the person for whom the obligation is performed. | Obligee |
| is an agreement by two or more parties whereby obligations are created, modified, or extinguished. | Contract |
| An obligation is this for the obligees when it gives each the right to demand the whole performance from the obligor. | Solidary |
| It is solidary for the obligors when | each obligor is liable for the whole performance. For example, if more than one person is obligated for a debt, the obligation is solidary if each one may be held liable for the entire amount. |
| Solidarity must be? or must result from law. It cannot be presumed. | expressed |
| is the extinguishment of an existing obligation by the substitution of a new one. | Novation |
| Common law jurisdictions define novation to be a substitution of | parties, thereby releasing the original parties. |
| An obligation is extinguished where the obligor and obligee are united in the same person. | Confusion |
| contract is one in which both of the parties are obligated. | Bilateral or synallagmatic |
| is one in which each party obtains an advantage in exchange for his obligation, but the advantages are unequal in value. | Onerous contract |
| places a burden on one party. | onerous contract |
| contract is one in which one party is obligated for the benefit of the other, but receives no advantage in return. | Gratuitous |
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