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Property II

dedication, common/public/priv, corp/incorp, mov/immov, unity

QuestionAnswer
Methods of dedication formal, implied, statutory, tacit
formal dedication Theoretically, a formal dedication should be done following the rules of donations, but requiring an authentic act is to cumbersome, so courts have eased the requirements; Requirements • Written document • Clear intent to donate
implied dedication Requirements (Cenac) • Clear intent to dedicate to public use, shown by acts so clear as to exclude every other reasonable hypothesis • Clear intent to accept as dedication for public use, shown through actual public use of item
statutory dedication dedic via R.S. 33:5051, developers of subdivisions must file map/plat with notations of public things (streets); diff from formal - disregards "clear intent to donate" req't; diff from formal - disregards "clear intent to accept" req't
tacit dedication dedicn of roads via R.S. 48:491; Govt authority maintain road for 3 yrs while adjoining landowner has actual or constructive knowledge of the govt’s actions; “maintain”? cutting down trees and leveling road 2x-3x/year enough
corporeal definition 461; things that have a body, whether animate or inanimate, and can be felt or touched; examples: cash, house, clothes
incorporeal definition 461; things s/no body, comprehended by understanding; Ex: IP, servitudes, energy; bonds (and stocks) are designated as an incorporeal (split seen in Succession of Miller); absurd bc cash and bonds are almost same
Donations distinctions for form requirements between corporeals/incorporeals corporeals can be donated inter vivos as a manual gift, thus not requiring an authentic act (Art. 1539); incorporeals must be donated inter vivos by an authentic act (Art. 1536)
Sales distinctions for method of delivery between corporeals/incorporeals Movable corporeals delivered when handed over; Incorporeals are delivered when negotiation requirements completed • important distinctions bc though ownership transfers upon consent of parties, risk of loss doesn't shift until moment of delivery
Corporeal Immovables Definition: things the legislature says are immovable and have a body and can be touched; 2 types: immovables by nature & by declaration
Incorporeal Immovables Definition: rights and actions that apply to immovable things (Art. 470); Examples: petitory or possessory actions, personal servitudes established on immovables
Immovables by Nature Definition: things the legislature says are immovable and likely are immovable by their nature, i.e. in the common meaning of the word immovable (category created by doctrine) Articles: 462 - 466
Immovables by Declaration 467 + Baumer; 1. Owner of immov must own machinery, appliance or equipmen; 2. immov not priv residence; 3. M, A, or E placed in immov for its service & improvement (Baumer: “placed” not perm'ly attached; placed = in use); 4. Declaration must be filed
Immovables Independent of Unity of Ownership: List Tract of land (462); Buildings (463 in pari materia 464 + Seaways); “Integral parts” (465 Carroll term); Permanent attachments (466); Standing timber (463 in pari materia 464)
Immovables Independent of Unity of Ownership: Buildings Buildings (463 in pari materia 464) - Building determined by prevailing notions of what is a building; characteristics to use include size, cost, material and purpose (Seaways)
Immovables Independent of Unity of Ownership: “Integral parts” (Art. 465 – Carroll terminology) IP/tract/land -> Augusta Sugar factors: (1) merger (2) loss of identity; IP/building or other constn only includes building mat'ls (Willis-Knighton + doctrine, but not plain meaning; theoretically apply Sugar factors, but then nail = integral part?)
Immovables Independent of Unity of Ownership: Standing timber (463 in pari materia 464) Standing = (1) not cut down and (2) rooted in the soil (jurisprudence test); Timber = no real definition (see common meaning, doctrine)
Immovables Dependent of Unity of Ownership Other constructions permanently attached to the ground (463 in pari materia 464); Unharvested crops/ungathered fruits (463 in pari materia 464)
in terms of unity of ownership, how can things be segregated of ownership? 1. Juridical act (an act engaged in to bring about a particular legal consequence): Affirmative transfer of thing + Reserve of thing in transfer; 2. AP; 3. Procedural/form failure: Failure/ PR doctrine non-binding on 3rd party
Categories of movables corporeal: things, animate or inanimate, that normally move or can be moved from one place to another (471); incorporeal: rights, obligations, and actions that apply to movable things (473)
Movables by Art. 475 Movables are all things not considered immovable (Art. 475)
other constructions not permanently attached -- movables? A contrario reading of Art. 463 and 464 establishes other construction not permanently attached are movable; gathered fruits are movables
In addition to things interpreted out of the Immovable articles, the Civil Code does list some specific movables ... Building materials not yet used (Art. 472); Unharvested crops owned by someone other than the landowner (474); Deimmobilized component parts (468)
Deimmobilized component parts (468) Deimmobilization in fact (covered by ¶ 3 and discussed in Chestnut); Deimmobilization in effect (covered in ¶ 1 and discussed in Folse)
Deimmobilization in fact from intentional act/man; to de-i in fact, thing must become component part then owner detaches/removes it becoming movable; only occurs “in absence of rights of 3rd persons” (if 3rd has mortgage, etc, de-i ineffective); Exceptn to 3rd party exceptn: GF
Deimmobilization in fact, exception to third party exception GF 468 P2; GF purchaser,(seller BF), then de-i remains; occurs w/ 2 3rd parties – 1 party screwed, so Code protects new owner (balancing of equities; so easy to purchase movables); A sells dairy to B; A then sells milk tank to C; C (if GF) keeps tank
Deimmobilization in effect 468 P1 + Folse; de-i from unintent'l act; when a component part so deteriorated/damaged that doesnt serve use of land/bldg -> de-i; component parts or immovable so damaged? doctrine suggests component part, but no case law
Significance of movable/immovable status: In property law ... Scope of transfer/encumbrance Transfer/encumbrance of an immovable includes its component parts (Art. 469)
Significance of movable/immovable status: In property law ... mode of acquiring ownership ... accession With consent of owner of immovable, addition owned by maker; w/o consent, addition owned by owner of immovable (490 – 494); Consent irrelevant for movables; an addition owned by owner of movable (507 – 516)
Significance of movable/immovable status: In property law ... transfer of ownership transfer immovable occurs @ moment of agreement, but only applicable to 3rd parties upon recordation (517); PR doctrine only immov; transfer movable occurs @ moment of agreement, but only applicable to 3rd parties upon delivery (518)
Significance of movable/immovable status: In property law ... servitude Predial servitudes, right of use and habitation only apply to immovables
Significance of movable/immovable status: In property law ... mode of acquiring ownership ... acquisitive prescription Period to take possession of an immovable may be as short as 10 years; Period to take possession of movable may be as short as 3 years
Significance of movable/immovable status: out of property law ... sale formalities (2440) Sale of an immovable must be in writing; Sale of a movable does not require writing
Significance of movable/immovable status: out of property law ... Donation inter vivos formalities Donation inter vivos of an immovable requires an authentic act (1536); Donation inter vivos of a movable does not require an authentic act (1539)
Significance of movable/immovable status: out of property law ... sales Lesion only applies to immovable property
immovables independent of unity of ownership tracts of land, buildings, integral parts, permanent attachments, standing timber
immovables independent of unity of ownership ... tracts of land ... authority? Art. 462 (“Tracts of land…are immovables.”)
immovables independent of unity of ownership ... tracts of land ... consequences? Hearn sells me his tract of land, but because it is an immovable, the sell must meet the sale2 requirements of an immovable under Art. 2440, namely an authentic act or an act under private signature
immovables independent of unity of ownership ... tracts of land ... topsoil While attached to ground, topsoil is part of tract of land, and thus is an immovable under 462 (supported by Landry v. Leblanc); Once it has been removed from the ground, it has become deimmobilized under 468, such that it becomes a movable
immovables independent of unity of ownership ... tracts of land ... topsoil, example A sells topsoil from his land, but since attached, it's immov + must meet sale requirements of immov; takes topsoil off of his and and sells it from back of his truck, has been de-i and is a movable, so sale does not need to meet same form requirements
immovables independent of unity of ownership ... buildings ... authority? 463 (in pari materia with 462) in pari materia 464; 463: Bldgs…are component parts…when belong to owner of ground; 462: Tracts of land, with component parts, are immov; 464: Bldgs…are separate immov when they belong to person other than owner of ground
immovables independent of unity of ownership ... buildings ... consequences? Hearn sells me a $300,000 house for $125,000; because the house is a building and a building is an immovable, the laws of lesion (Art. 2589) can be applied and the sell can be nullified
immovables independent of unity of ownership ... What is a building? not defined in code; a bldg is what is, “under prevailing notions,” considered a bldg; factors to consider include size, cost, materials used; a building doesn't need to have foundations in soil and it does not need to actually be immovable (Seaways)
immovables independent of unity of ownership ... integral parts ... authority? 465: Things incorporated into tract of land, a bldg, or other construction, so as to become integral part…are its component parts; three categories of things integral parts may be incorporated in: tracts of land, buildings, other constructions
immovables independent of unity of ownership ... What determines when an item is incorporated such that it becomes an integral part? Augusta Sugar factors: must “become so incorp into, or merged in, immov prop, as to be part+parcel of it”; Factor 1: merger between immov and integral part; Factor 2: loss of ID of integral part; Note, don't need to meet both, factors just influential
EX: integ parts of tracts/land; lease tract and (w/permission) add flower bed, fish pond, wooden fence to lot; (469) component parts of immovable are included when the immovable (this land, 462) is transferred. FLOWER BED sold w land? 465, if FB become incorp -> integ part/ tract/land -> component part + transferred w/ sale of land; Applying Augusta Sugar, FB has merged into land become one w/ground + lost its ID bc I couldn't pick up just soil. integral part 465, will be transferred
EX: integ parts of tracts/land; lease tract and (w/permission) add flower bed, fish pond, wooden fence to lot; (469) component parts of immovable are included when the immovable (this land, 462) is transferred. FISH POND sold w land? AS factors: FP not merged w/ground like FB, but can't really remove from ground either; still a distinction between bricks + earth, but FP were removed, would cease to be FP, and would pull up earth w/it; thus, also integral part by 465 (bit of stretch)
WRT to fish pond, why use Art. 465 when Art. 463 establishes that “other constructions permanently attached to the ground” are component parts? bc 463 requires there to be unity of ownership, whereas 465 does not
WRT to fish pond, Because the Code does not say when to use Art. 463 and when to use 465, scholars theorize that ... Art. 465 should be used when something is “really, really” integrated into the ground, while Art 463 should be used if something is “kind of” integrated into the ground
EX: integ parts of tracts/land; lease tract and (w/permission) add flower bed, fish pond, wooden fence to lot; (469) component parts of immovable are included when the immovable (this land, 462) is transferred. WOODEN FENCE sold w land? Similar argument (though perhaps not quite as persuasive) as the fish pond; under Art. 465, likely it would be considered an integral part
Art. 465 specifically lists “building materials” as an example for what is an integral part of a building or other construction, and ... many scholars believe this only integral part; interp not supported by plain text reading 465, but has been alluded to in Willis-Knighton; literal reading 465: apply AS factors to matls in bldgs + other constructions, but courts have yet to do so
New 466, par 1 attached to building and, accdg to prevailing usages, serve to compl bldg/ same gen type, w/o regard to its spec use, are its comp parts. Comp parts of this kind may incl doors, shutters, gutters, cabinetry, + plumb, h&c, electrical, + sim systems
New 466, par 2 Things that are attached to a construction other than a building and that serve its principal use are its component parts.
New 466, par 3 Other things are component parts of a building or other construction if they are attached to such a degree that they cannot be removed without substantial damage to themselves or to the building or other construction.
Seaways factors Bldg determined by prevailing notions of what is a bldg; charact's include size (3 stories in S), cost (more expensive, more likely bldg), material (steel in S) and purpose (living quarters in S); not including shape so Tiger Stad could be other construct
New 466 approach ... step 1 use Seaways to determine in component part is of a building or other construction
New 466 approach ... step 2, if comp part of a building "prevailing notions" -- use experts, more restrictive than "societal expectations" (Equibank); + "serve to complete building of same gen type," 3 gen types: resid, comm, indust; no nuclear cams in comm (Willis-Knighton), no gaming on boat (Showboat)
New 466 approach ... step 2, if comp part of other (immovable) construction if part "serves principal use" than a component part ... simple
New 466 approach ... step 3, other other component parts of building/other construction -- if can't be removed without SUBSTANTIAL DAMAGE to itself or the building/other-construction
immovables independent of unity of ownership ... standing timber ... authority? in pari materia Articles 463 (with 462) and 464
immovables independent of unity of ownership ... what is standing timber? not defined in code, so break it apart: what is timber? what is standing?
immovables independent of unity of ownership ... what is standing timber? ... what is timber? unclear PLAIN MEANING (dict) conflicting: wood for struct purp OR grows to certain ht; DOCTRINE: 562 C timb= trees that produce lumber for building/manuf'g (comml purp's, like river def); PRO SUBJECTA MATERIA: not in immov section, but code supp to be all-encomp
immovables independent of unity of ownership ... what is standing timber? ... what is standing? jurisp test: not cut down + (Planiol) rooted in soil; trees cut down = movables (463 D); 463 D implies all nursery trees are immov, whether planted in soil or not; overbroad, bc cites LA v. Henderson, which only covers nursery trees in soil
What is segregation of ownership? one person owns the ground and one person owns the thing
Segregation of ownership – how can things that are immovables regardless of unity of ownership be segregated (i.e. one person owns the ground and one person owns the thing)? juridical act OR acquisitive prescription
How does segregation of ownership occur by juridical act? Affirmative transfer (ex: you sell me your timber, but not your land) OR reserve of thing in transfer (ex: you sell me your land, but not your timber)
What is a juridical act? act/event that parties engage in to bring about a particular legal consequence; as opposed to a juridical fact which brings about a particular legal consequence regardless of the parties will
How does segregation of ownership occur by acquisitive prescription (AP)? example You sell me your land but not timber; we agree I can cut timber down for 5yrs; 5yrs go by and no cut, so timber mine; if no set time frame, court determines what is reasonable (Willets Wood – 4 years reasonable and maybe less than that)
How does segregation of ownership occur by acquisitive prescription (AP)? theory want same person to own land and immovable (i.e. want unity of ownership) bc w/o unity thing is more likely to be out of commerce (who wants to buy a plot of land without the trees?); to keep land in commerce we strive for unity of ownership
Immovables independent of unity of ownership? definition those immovables that are only immovable if they are owned by the same person who owns the ground underneath them
Immovables independent of unity of ownership? list ... just two OCPAs AND unharvested crops/ungathered fruit
Immovables independent of unity of ownership? ... Other constructions permanently attached (OCPA) to the ground ... authority? 463 + 464 (listed in 463, items immov if item is owned by same person who owns the land; not listed in 464); 463 + 464 in pari materia and a contrario, an OCPA that does not belong to same person who owns ground is a movable (463 D agrees w/this interp)
Immovables independent of unity of ownership? ... Other constructions permanently attached (OCPA) to the ground ... "other"? Other = other than a building; reading 463, 465, and 466, other is also referenced as other than a building
Immovables independent of unity of ownership? ... Other constructions permanently attached (OCPA) to the ground ... "construction"? Construction = manmade structures; Bayou Fleet states a limestone base is an “other construction;” 463 C names oil tanks, tractors and poultry houses as other constructions
Immovables independent of unity of ownership? ... Other constructions permanently attached (OCPA) to the ground ... "others constructions"? OC = manmade structures other than a building; SO apply Seaways factors
Immovables independent of unity of ownership? ... Other constructions permanently attached (OCPA) to the ground ... "permanently attached"? 1. read in pari materia w 466, use same def as “permanently attached,” "substantial damage" test, but do you apply rest of 466, too :( ... 2. Likely following Seaways, don't need a foundation soil, so a pari, other construction wouldn't
Immovables independent of unity of ownership? ... unharvested crops/ungathered fruits ... authority? 463 + 464 (listed in 463 which makes items immovable if the item is owned by same person who owns the land; not listed in 464)
Immovables independent of unity of ownership? ... unharvested crops ... "unharvested"? Unharvested = not gathered
Immovables independent of unity of ownership? ... unharvested crops ... "crops"? Does crop mean entire plant or just produce on plant? GRAMMATICAL INTERP(Art. 11), use "crop" dict def of cultivated agri plants or vegetation grown for subsistence/profit; SOURCE ANALYSIS, crop = produce, as French originally meant in 1808 Code; DOCTRINE -> source analysis, crop just produce
Immovables independent of unity of ownership? ... ungathered fruits? ... "ungathered"? Ungathered = not gathered/collected
Immovables independent of unity of ownership? ... ungathered fruits? ... "fruits"? Should we read 551 in pari materia and use that def/ fruit? Problem is includes economic fruits, absurd; maybe dict def (Art. 11) more appropo, meaning grown vegetation or produce; don’t take “of trees” too literally, bc cases included grapes (of vines)
Immovables independent of unity of ownership? ... what about gathered fruit and harvested crops? A contrario reading of 463, gathered fruit or harvested crops are movables (this is also supported in doctrine)
Immovables independent of unity of ownership? ... What about other grown items that aren’t crops or fruits (ex: bushes)? ... 465 argument could read in to be immov by 465 (so come w/ house when sold); if 465, need to meet Augusta Sugar factors: merger + loss of ID; bushes don't meet?
Immovables independent of unity of ownership? ... What about other grown items that aren’t crops or fruits (ex: bushes)? ... 466 argument use substantial damage test or prevailing notions of residential type of building
Immovables independent of unity of ownership? ... What about other grown items that aren’t crops or fruits (ex: bushes)? ... doctrine argument SOURCE ANALYSIS: Planiol crops/fruits listed bc most litigated; other items, too (supported by Henderson), but plain meaning of 463 says crops and fruits; OR 463-466 illustrative, not exclusive, ways to become comp part by 462, but Seaways says exclusive
Segregation of ownership -- how can things that are immovables depending on unity of ownership be segregated (i.e. one person owns the ground and one person owns the thing)? Juridical act or Form requirement failure (Public records doctrine)
Segregation of ownership -- how can things that are immovables depending on unity of ownership be segregated (i.e. one person owns the ground and one person owns the thing)? ... by juridical act Affirmative transfer (ex: you sell me your timber, but not your land); note: R.S. 9:3204 (share of crop as rent) designated portion of crop remains owned by lessor; OR Reserve of thing in transfer (ex: you sell me your land, but not your timber)
Segregation of ownership -- how can things that are immovables depending on unity of ownership be segregated (i.e. one person owns the ground and one person owns the thing)? ... Form requirement failure (Public records doctrine) Any act affecting immovables must be recorded in public record to be binding on 3rd parties; Ex: Miller sells me his unharvested crops; if don’t record what I own and miller sells property to Jerome, my ownership not binding on Jerome
possession is ... factual authority over a thing with the intent to keep it as your own; Possession is a matter of fact (Art. 3422)
Created by: scottsmith81