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Property IV

petitory action, accession, co-ownership, usufruct, predial servitudes

QuestionAnswer
PETITORY ACTION ... what is ownership? elements, characteristics, and protection right that confers on a person direct, immediate, and exclusive authority over a thing (Art. 477); Elements include usus, fructus, and abusus; Characteristics include perpetual, absolute, exclusive; Ownership is protected by the petitory action
PETITORY ACTION ... used only for ...? Petitory actions are only used for immovables
PETITORY ACTION ... brought by whom? person claiming ownership, NOT in possn, of immov prop or real right therein, against one in possn or claiming adverse ownership, to recognize P's ownership (CCP 3651); If person bringing action IN possession -> declaratory judgment (526 b); same factors
PETITORY ACTION ... what determines burden of proof? determined by the defendant’s right to possess (note: the CCP and CC refer to the defendant as being “in possession” or not “in possession,” but it means the defendant has the right to possess or does not have the right to possess)
PETITORY ACTION ... burden of proof ... If D does have the right to possess P must prove he has acquired ownership from a previous owner or by acquisitive prescription (CCP Art. 3653(1))
PETITORY ACTION ... burden of proof ... D does have the right to possess ... How prove “acquired ownership from a previous owner”? P must prove his title is “good against the world” (Skinner test); P must prove he can trace his title back to the sovereign or prove a previous owner acquired ownership via acquisitive prescription
PETITORY ACTION ... burden of proof ... D does have the right to possess ... prove “acquired ownership from a previous owner” ... exception to Skinner rule/test? common author rule (532), which says if there is a common author in the title chains of the P and D, then that person is presumed to be the previous owner; in this case, the title emanating form the common author first (the more ancient one) wins
PETITORY ACTION ... burden of proof ... If D does NOT have the right to possess? P must prove he has “better title” than the D(Art. 531 and CCP Art. 3653(2))
PETITORY ACTION ... burden of proof ... D does NOT have the right to possess ... what's a better title? prevailing view: older title is better title; However, scholars are starting to say that other factors should be considered; 2 cases in the past 20 years have looked at clarity of title (description of property) to determine the “better title”
PETITORY ACTION ... versus revendicatory action Petitory actions only apply to immovables; revendicatory actions are the movable equivalent; Revendicatory actions are innominate real actions, but courts follow the rule of petitory actions
ACCESSION ... what is accession? 482; governs extent of ownership of thing, i.e. whether owner also owns fruits/products and things united/attached to it; rules internally inconsistent because of the piecemeal code revisions; only supplative rules, so parties may estab alternative rules
ACCESSION ... what are 3 different regimes of accession? Fruits and products, Immovables, Movables
ACCESSION ... accession of immovables and questions? the attachment of a movable to an immovable, owned by different people; Questions: who is owner of movable? Who allowed to take it away? Who gets $ for movable? --> 2 sets of rules: rules of ownership + remedies; relative rules (only apply btwn parties)
ACCESSION ... accession of immovables ... wrt 3rd parties? With regards to third parties, the rules of recordation apply (this is supported in Graffagnino)
ACCESSION ... accession of immovables ... general distinctions Type of THING (property) you are dealing with/being attached: two possible types – improvement and component parts; Type of PARTIES you are dealing with/who attached thing: OPP, Possessor, Lessee
ACCESSION ... accession of immovables ... general distinctions ... 2 types of THING (property) dealing with/being attached? Improvements (A rubrica 493) are bldgs, OCPA, plantings (plantings = Standing timber, unharvested crops, ungathered fruits or/of trees (496 c); plantings broader then just timber, crops, etc., + “humble vegetation”); AND Component parts (under 465 + 466)
ACCESSION ... accession of immovables ... general distinctions ... 3 types of parties you are dealing with/who attached the thing? Lessee; Possessor; Other precarious possessors (OPP), which is a precarious possessor that is not lessee and not co-owner (ex: holder of pledge, holder of precaium, holder of servitude)
ACCESSION ... Rules for other precarious possessors (OPP) ... example Falgoust v. Innis is an example – he’s an “OPP” (holder of precarium) and the gas station would be a building or an OCPA
ACCESSION ... Rules for other precarious possessors (OPP) ... two divisions: With OPPs, divide between improvements and component parts + if the OPP had consent or not
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + with consent of owner ... who owns the improvement? (493) Maker = party who made, created, or installed the improvement or component part
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + with consent of owner ... what are the Maker's rights of removal? Maker can remove if he restores property to its former condition (Art. 493)
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + with consent of owner ... what are the Owner's rights of removal? Owner can make written notice, wait 90 days, and appropriate ownership via certified mail (493); no right to force removal at Maker's expense
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + with consent of owner ... what are the Maker's rights of reimbursement? Owner owes Maker nothing if he appropriates ownership; Maker has no right to reimbursement (493); but "equitable estoppel gives Maker some compensation from Owner (Brankline); equity discretionary not code-based
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + without consent of owner ... Who owns it the improvement? Owner (Art. 493)
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + without consent of owner ... What are the Owner’s rights of removal? Articles say nothing about this scenario; Owner cannot force removal at Maker’s expense because there is no remedial rule
ACCESSION ... Rules for other precarious possessors (OPP) ... improvements + without consent of owner ... What are the Maker's rights of reimbursement? no rule, so Maker likely gets nothing (a fortiori from OPP with consent); Brankline/equitable estoppel analogy but more difficult to make w/o consent
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + with consent of owner ... who owns the component part? Owner of the immovable (Art. 493.1); This is bizarre because the lessee/maker can ask for the lessor/owner’s permission and still not own the component part
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + with consent of owner ... what are the rights of removal? Maker can remove if restores prop to former condition (495); bizarre bc Owner owns component part; Owner can force remov @Maker’s expense after demand (495); Owner can keep and pay Maker if not removed after demand (495)
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + with consent of owner ... what are the rights of reimbursement? If the Owner keeps the movable, then he must pay the Maker either the current value of the materials and labor or the enhanced value of the immovable (his choice)
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + without consent of owner ... who owns the component part? Owner of the immovable (Art. 493.1); NOTE: ownership does not hinge on the consent of the owner
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + without consent of owner ... what are the rights of removal? There is no rule; 495 is titled (and includes in the first paragraph) “with consent” so it does not govern “without consent”; A fortiori argument that it makes even more sense for without consent to apply with consent rules
ACCESSION ... Rules for other precarious possessors (OPP) ... component parts + without consent of owner ... what are the rights of reimbursement? Again, no rule; A fortiori doesn’t really work here wrt w/consent of owner for component part bc if OPP didn't get permission, why should the lessor reimburse him
ACCESSION ... Rules for possessors There is no distinction for possessors between improvements and component parts, because possessor articles (Art. 496 and 497) cover constructions, plantings, and works, which incorporate both improvements and component parts and perhaps more
ACCESSION ... Rules for possessors ... important distinction The distinction to make for possessors is whether or not they are in good faith; IMPORTANT: Good faith, for purposes of accession means a possessing by virtue of an act translative of ownership and not knowing any defects in the ownership (Art. 487)
ACCESSION ... Rules for possessors ... Differences between “good faith” in accession and “good faith” in acquisitive prescription Accession, subj knowlg; AP, subj + obj knowlg; Accessn incorp act transl/ ownership (just title minus recordation + written aspects) and GF (belief of ownership) together in GF; AP separates GF and just title (or w/ mov's, act translative of ownership)
ACCESSION ... Rules for possessors ... Possessor in good faith rules ... Who owns the constructions, plantings, works parts? 496 says nothing; it only talks about remedies, it doesnt set out a rule of ownership; Intuitively (and by comment c of Art. 496), the Owner owns the constructions, plantings, and works
ACCESSION ... Rules for possessors ... Possessor in good faith rules ... What are the Maker's rights of reimbursement? Owner must reimburse Maker either (1) cost of matls + labor, (2) current value of materials + labor, or (3) enhanced value of immov; Owner gets to pick; if improvmt valueless, when Owner picks reimbursmt, he’ll pick valueless bc $0 reimbursmt (Sanders)
ACCESSION ... Rules for possessors ... Possessor in good faith rules ... What are Owner's rights of removal? Owner cannot demand removal at Maker’s expense; Exception: Britt Builder’s rule says that if enhancement is valueless, then Owner can get the thing removed at the Maker’s expense (this was done via tort law)
ACCESSION ... Rules for possessors ... Possessor in bad faith rules ... Who owns the construction, plantings, works? Owner (though doesn’t say in Art. 497, but a fortiori from good faith possessor)
ACCESSION ... Rules for possessors ... Possessor in bad faith rules ... what are owner's rights of removal? Owner can force demolition and removal at Maker’s expense (art. 497)
ACCESSION ... Rules for possessors ... Possessor in bad faith rules ... what are maker's rights of reimbursment? ... if separable? If the improvement is separable and the Owner keeps them, he must pay (his choice) either (1) current value of materials and labor or (2) enhanced value of immovable
ACCESSION ... Rules for possessors ... Possessor in bad faith rules ... what are maker's rights of reimbursment? ... if INseparable? If inseparable and Owner keeps, owes Maker nothing (497 + Voiers); but BF possessor may set value/ improvmts against landowner's claim for return/ fruits (497 d); but BF possessor may be able to recover necessary expenses (527)
ACCESSION ... Rules for lessees ... note on revision Lessees are considered separately in Art. 2695 due to Law Institute revision in 2005
ACCESSION ... Rules for lessees ... distinctions? Article covers attachments, additions or other improvements, which incorporates both component parts and improvements, so no distinction needs to be made
ACCESSION ... Rules for lessees ... who owns the attachment? Maker/lessee (set out in Art. 2695(2)(c)) – slightly round about way to get there; Note that for unlike OPPs, ownership is not dependent upon consent
ACCESSION ... Rules for lessees ... what are the rights of removal? if lessee removes ... Lessee can remove all improvts he made to leased thing (2695(1))
ACCESSION ... Rules for lessees ... what are the rights of removal? if lessee DOES NOT remove ... If lessee doesnt remove, lessor can: • appropriate ownership from get go • demand removal @Maker/lessee’s expense • If Maker doesnt remove by 2nd demand, lessor can appropr ownershp 2nd notice cert mail; improvmt from OPP, bc owner can remove if not w
ACCESSION ... Rules for lessees ... what are the rights of reimbursement? if owner appropriates from get go? owner/lessor has to pay the lessee either the cost or the enhanced value of the leased thing (which is less)
ACCESSION ... Rules for lessees ... what are the rights of reimbursement? if after 2nd demand for removal? lessor owes Maker nothing; Basically, you pay if you havent demanded removal; never a case on this, but there is the possibility that the Brankline equitable estoppel may apply, but need for equity is less in this scenario
ACCESSION ... Rules for lessees ... time element? One of the bizarre things about the lease accession is that there is no time element; Most scholars would say the lessee has a reasonable time to remove the attachment, but the article does not precisely say what the time is
CO-OWNERSHIP ... what is it? Co-ownshp = ownshp in indivision; by 797 must be: form of ownshp (co-own's truly own entire thing); Of same thing (every co-owner shares every molecule, Planiol, including rights of predial servitude + usufruct (818)); By 2+ persons
CO-OWNERSHIP ... how created? by operation of law OR by act of will (judicial acts, not judicial fact)
CO-OWNERSHIP ... how created? ... by operation of law Intestate succession (when someone doesn’t leave a will); Commingling of materials; Termination of community (divorce, separation); Acquisitive prescription
CO-OWNERSHIP ... how created? ... by by act of will (judicial acts, not judicial fact) Bilateral acts – sales, exchanges; Unilateral acts
CO-OWNERSHIP ... Dividing the shares of a co-ownership General rule based on 797: all co-owners are presumed to be equal owners; Exceptions: Juridical act - you can stipulate otherwise OR Provision in law
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... fruits (vs. products) Fruits (551) things produced from land (or animals) that DONT diminish substance of the land; Products DO diminish the substance of land; For natural occurring fruits/products, co-owners get a share of fruits/products in proportion to ownership (798)
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... FRUCTUS ... cost of production co-owner who produces fruits/products gets cost of production, and then rest of fruits/products are divided between co-owners in proportion to their co-ownership portion (798); Note that cost of production doesn't equal cost of labor (comment c)
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS Rule from LeBlanc v. Scurto: all co-owners have equal rights to use and possess co-owned property at least for "purpose property is destined" ("according to its destination" 802), and that use cant be obstructed by another co-owner’s possession
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... applied to non-equal shares of ownership? The general rule of equal use applies to non-equal shares of co-ownership (Butler v. Hensley); right of equal use has nothing to do with magnitude of co-ownership
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... exception? use defined by agreement (Art. 801)
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... list 3: Conservatory Acts = necessary steps for the preservation of a thing (Art. 800); Ordinary maintenance and repairs; Improvements and alterations
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 1. conservatory acts Conservatory Acts = necessary steps for preservation of thing (800); Applying 806, co-owner can get reimbursed for conserv acts; What is “necessary steps”? interpreted like 527 (BF possessor) in which “necessary” implies quelling an imminent threat
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 2. ordinary maintenance + repairs 806 says a co-owner can be reimbursed for ordinary maintenance and repairs, but it never says if this requires consent or not of the other co-owners; presumed that consent is not required
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... consent? To make substantial alterations or substantial improvements, the co-owner must have the consent of the other co-owners; A contrario: insubstantial alterations or improvements can be made without consent, but what are the rules of reimbursement??
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements without consent? If a co-owners makes substantial improvements without consent, then 804 says to apply accession good faith possessor rules, but does this work?
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements without consent? ... who owns the substantial improvement? Art. 496 on good faith possessors says nothing; Ark-La-Miss sets out principle that Art. 493 should be applied to determine owner of substantial improvement, so the Owner owns it; What owner? All co-owners? Even the one who didn’t get consent?
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements without consent? ... What are the Maker’s rights of reimbursement? Owner must reimburse Maker in either (1) cost of matls + labor, (2) current value matls + labor, or (3) enhanced value of immov; Owner gets to pick, but this creates a problem bc co-owners will have divergent views on high or low reimbursement
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements without consent? ... what are the Owner's rights of removal? Art. 493 says the Owner cannot demand removal at Maker’s expense
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements despite objections + inconsistent w/use of property? If a co-owner makes substantial improvements in spite of objections of co-owners or the substantial improvements are inconsistent with the use of the property, then Art. 804 says to apply the accession bad faith possessor rules, but does this work?
CO-OWNERSHIP ... Rights of the co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substantial improvements despite objections + inconsistent w/use of property? ... Who owns the substantial improvement? 497 on bad faith possessors says nothing about who owns, but applying the a fortiori the good faith possessor rule, we usually say the Owner; Again, what owner? All of the co-owners?
CO-OWNERSHIP ... Rights of co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substanl improvements despite objectns + inconsistent w/use of prop? ... what are Maker's rights of reimbursmt? if separable? If it is separable and the Owner keeps it, he must pay either the current value of the materials and labor or the enhanced value of the immovable; Again, there is a conflict between the Owners as to which to pay
CO-OWNERSHIP ... Rights of co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substanl improvements despite objectns + inconsistent w/use of prop? ... what are Maker's rights of reimbursmt? if INseparable? Owner gets to keep it and owes Maker nothing; Except Maker may offset value of improvmt against claim/ fruits by Owner (other co-owners); necessy expenses argument used under BF possessors wouldn’t apply bc necessy improvmts for co-owners governed by 806
CO-OWNERSHIP ... Rights of co-owners ... collective rights ... USUS ... particular uses ... 3. improvements + alterations ... substanl improvements despite objectns + inconsistent w/use of prop? ... what are Owner's rights of removal? The owner can force demolition at the Maker’s expense
CO-OWNERSHIP ... Rights of co-owners ... individual rights ... ABUSUS, general rule co-owner may lease, alienate, or encumber his share of the thing (805); This includes executing real rights (securities, usufruct) on his share of the thing
CO-OWNERSHIP ... Rights of co-owners ... individual rights ... ABUSUS, exception to general rule only exception is for predial servitude (PS); PS must be over corporl immov, and PS part incorporeal, so doesn't work; 716 gets around this by allowing a servitude to be created, but doesn’t exist until co-owner'p over, i.e. when prop is partitioned
CO-OWNERSHIP ... terminating co-ownership ... 3 ways: Loss of the thing; Judicial act; Partition (divvying up of the land)
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... availability General rule: any co-owner can seek or demand partition at any time (Art. 807); Excepts: Contrary provision in juridical act (but only 15 yrs); 1300, special exclusion for donations (donors can refuse new co-owners' right of partition for 5 yrs)
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... two types of partition in kind AND by licitation
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... 1. partition in kind preferred method, so if can be done, court shall do it; Requirements: thing is susceptible of division and the aggregate value of the divided parts roughly equals the value of the whole
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... 2. partition by licitation substitute for in kind; Some legislation in Louisiana floating about that co-owners should get right of first refusal, but currently not the case
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... effects of partition directed ... 1. interest of co-owners Partition in kind leads to localized interest; Partition by licitation leads to reimbursement from proceeds of sale
CO-OWNERSHIP ... terminating co-ownership ... 3. partition ... effects of partition directed ... 1. interests of third parties If 3rd-P has real right on formerly co-owned thing as a whole, nothing happens to real right, remains w/thing; If 3rd-P has real right on former co-owner’s share of thing, right attaches just to that 3rd-P’s share (share = proceeds if partitn by licit'n)
USUFRUCT ... what is it? Usufruct is a personal servitude (i.e. a charge on a thing for the benefit of a person), so it is a real right that confers authority over a thing; Usufructuary holds usus and fructus; naked owner holds abusus
USUFRUCT ... categories? Consumables (imperfect usufruct); Nonconsumables (perfect usufruct); Intermediate category
USUFRUCT (UF) ... categories of usufructs ... 1. consumables imperfect UF; UFy has usus, fructus, and abusus, but has to pay naked owner back full value of thing @end of UF; UF over anything that cant be used w/o being expended, consumed, or substance being changed (ex: money, food, harvested agricultural products)
USUFRUCT (UF) ... categories of usufructs ... 2. nonconsumables perfect UF; UFy has usus and fructus; naked owner has abusus; Usufruct over things that can be enjoyed without altering their substance (ex: land, house, stock [Leury v. Mayer])
USUFRUCT (UF) ... categories of usufructs ... 3. intermediate category 568; usufructuary has right to dispose of corporeal movables that are gradually and substantially impaired by use, wear or decay, provided he has acted as a prudent administrator; Ex: equipment, vehicles, appliances
USUFRUCT (UF) ... acquiring usufruct Juridical act (ex: sale, donation); AP; Operatn of law [ex: spousal UF (aka 890 UF) – surviving spouse has UF over descendants' (kids') share of community prop, but kids naked owners - Cinderella prob of evil step mother having UF over what stepkids own]
USUFRUCT (UF) ... rights of usufructuary ... fructus Fructus only applies to fruits, not products
USUFRUCT (UF) ... rights of usufructuary ... fructus ... natural fruits? UFy gets natural fruits served during UF; after termination of UF, naked owner gets them; What does served mean? Gathered? Harvested?; naked owner may reimburse UFy if prevents him from serving nat-fruits
USUFRUCT (UF) ... rights of usufructuary ... fructus ... civil fruits? UFy gets civil fruits acquired during UFy; after termination of UF, naked owner gets them; Civil fruits accrue by day, so even if UFy has not collected the civil fruits upon end of UF, he is still entitled to them
USUFRUCT (UF) ... rights of usufructuary ... usus Usufructuary has right to possess and use the thing to satisfy his wants and needs, but the use must be in accordance with the nature of the thing
USUFRUCT (UF) ... rights of usufructuary ... usus ... limitations Duty to act as prudent adminstr; Cant make improvts w/o written consent of naked owner, or if naked owner refuses, then UFy may get ct approval (based on prudent adminstr standard); changes in destintn of thing maybe ok (not under Roman law, but 558)
USUFRUCT (UF) ... rights of usufructuary ... usus ... uses of special interest Lease, alienate, encumbrance – a usufructuary can lease, alienate, or encumber his UF; This leased UF ends upon death of original UFy (Sparks v. Dan Cohen)
USUFRUCT (UF) ... rights of usufructuary ... abusus Generally no right to abusus, but exceptions are with consumable things (though you have to repay the naked owner), and the intermediate category created in which the usufructuary can dispose of corporeal movables
USUFRUCT (UF) ... duties of usufructuary ... 4 things security, repairs, charges, prudent administrator
USUFRUCT (UF) ... duties of usufructuary ... 1. security UFy must put up security that will act as prudent administr (like special mortgage); Exceptns: BY LAW, if actual parent of naked owners from spousal UF (890 UF), no security necessary; If not actual parent (step parent), security necessary
USUFRUCT (UF) ... duties of usufructuary ... 2. ordinary repairs UFy responsible for ordny maintnce+repairs and expenses necessary for preservn (in pari materia w/ co-ownshp)
USUFRUCT (UF) ... duties of usufructuary ... 2. ordinary repairs ... vs. extraordinary repairs Naked owner responsible for extraord repairs; Succession of Crain: repairing roof and boat slip as extraord, but ord: painting, repairs (leaks, AC), removals (mold, small tree), glass replace
USUFRUCT (UF) ... duties of usufructuary ... 3. charges UFy must pay annual charges (prop tax); UFy must pay extraordinary charges (ex: paving assessment), but if charges augment value of prop, UFy may be able to be reimbursed by naked owner at end of UF (can be reimbursed for paving assessment)
USUFRUCT (UF) ... duties of usufructuary ... 4. prudent administrator UFy must act as prudent administr, apply a reasonable man standard (basic idea – UFy cannot act stupid); Specific examples: if UFy sees someone trying to establish AP on the land, he must inform naked owner or pay damages
USUFRUCT (UF) ... rights and duties of naked owner? Naked owner had right of abusus, so can dispose the thing, however any alienation or encumbrance cannot affect usufructuary; Naked owner has no right of usus or fructus
USUFRUCT (UF) ... termination of UF ... causes (3) 1. Death of usufructuary (dissolution if juridical person or 30 years); 2. Destruction of burden thing; 3. Waste or abuse
USUFRUCT (UF) ...termination of UF ... causes (3) ... 1. death of a UFy dissolution if juridical person or 30 years
USUFRUCT (UF) ...termination of UF ... causes (3) ... 2. destruction of burden thing A usufruct of non-consumables terminates when the thing is destroyed (Bond v. Green) interprets this to mean a total destruction of the usufruct
USUFRUCT (UF) ... termination of UF ... consequences of termination ... causes (3) ... 3. waste or abuse naked owner must petition ct for termintn, then court decides if termintn; if none, UFy may have to give naked owner a reasonable annuity o Waster or abuse includes neglecting to make ordinary repairs, but it does not include normal wear and tear
USUFRUCT (UF) ... consequences of termination? nonconsummables? At termination of the usufruct, full ownership is restored to the naked own; However, if the usufruct was lost/destroyed because of usufructuary’s fault, then naked owners can get damages
USUFRUCT (UF) ... consequences of termination? consummables? Usufructuary must deliver same quantity/quality of things or the value of the thing at commencement of the usufruct to the naked owner upon the termination of the usufruct
USUFRUCT (UF) ... consequences of termination? intermediate category? At termination, naked owner receives value of thing at the time of disposition; Naked owner has no right to new property
PREDIAL SERVITUDES ... definition A predial servitude is a charge on a servient estate for the benefit of a dominate estate. (Art. 646)
PREDIAL SERVITUDES ... definition ... dissect "charge on a servient estate" Estate = distinct corporeal immov; Servient estate = w/ burden; Charge = negative duty (not affmatve duty); Charge must be negtv duty (obligation not to do) or allow something to be done on estate
PREDIAL SERVITUDES ... benefit to dominant estate Estate = distinct corporeal immovable; Dominant estate = estate with the benefit; Benefit = right (must be a socially or economically useful purpose)
PREDIAL SERVITUDES ... there must be separate ownership of estates This gets tricky in a co-ownership scenario, but if co-owners own one piece of property and one co-owner owns the other, then this (comment f of Art. 646) is considered separate ownership
PREDIAL SERVITUDES ... characteristics of predial servitudes Inseparability -- Servitude runs with the land – it is inseparable form the servient or dominate estate
PREDIAL SERVITUDES ... types of predial servitudes Apparent predial servitudes = perceivable by exterior signs; Nonapparent predial servitudes = no exterior sign of its existence
PREDIAL SERVITUDES ... acquisition of predial servitudes ... 3 ways: by title, by AP, by destination
PREDIAL SERVITUDES ... acquisition of predial servitudes ... 1. by title Nonapparent and apparent servitudes may be created by title; Must meet form requirements (authentic act or act under private signature, Art. 1839)
PREDIAL SERVITUDES ... acquisition of predial servitudes ... 2. AP Apparent servitudes can be gained via acquisitive prescription; Same requirements for acquisitive prescription (i.e. 30 yr, 10 yr, just title…etc.)
PREDIAL SERVITUDES ... acquisition of predial servitudes ... 3. by destination Apparent servitudes are automatically created by alienation of one estate; Nonapparent servitudes only come into existence when they are filed for registry
PREDIAL SERVITUDES ... extinction of predial servitudes ... 3 ways: Destruction of dominant estate or of part of servient estate burdened with servitude; non-use 10 years; confusion = same owner acquiring both estates
PREDIAL SERVITUDES ... extinction of predial servitudes ... 1. Destruction of dominant estate or of part of servient estate burdened with servitude Destruction of servient estate does not include if the thing becomes impossible; that only leads to a suspended predial servitude that will be re-established when the thing does not become impossible
PREDIAL SERVITUDES ... extinction of predial servitudes ... 2. non-use 10 yrs Ashland Oil says that mere gestures to preserve the servitude are not enough
Created by: scottsmith81