Louisiana’s laws regulating the use and ownership of property is based on principles that literally began in Roman times. In the United States, the word "property" may refer to either an object subject to certain rights (such as a piece of land or a car) or the rights a person has with respect to the objects themselves (such as ownership, leases, and servitudes). This "dual" meaning has often caused confusion.
Probably the best definition of "property" in Louisiana is: "the right and privilege to control an economic good or product, that has accompanying obligations and restrictions with respect to those rights and privileges."
People do not own property in a vacuum in which they have an unfettered right to use their property in any manner they choose. Property owners may exercise their property rights to the fullest extent possible, but they must not do so at the expense of infringing on the rights of other property owners. A prime example of this principle is embodied in the following statute:
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. An ultrahazardous activity is strictly limited to pile driving or blasting with explosives.
Now, one might think: "When am I going to use a pile-driver or explosives on my property?"
Just consider the nature of Louisiana itself. With so many waterways and people living alongside them, how many times have you seen landowners building bulkheads on their property next to the river using a pile driver driving pilings into the river bed to hold up the bulkhead? With the amount of oil and natural gas in the state, how many times have you seen or heard companies exploring for oil or gas using explosives in an attempt to show underground development that might have oil or natural gas, depending on the formations exposed by the blasting? Thus, such ultrahazardous activities are not as far-fetched as one might think at first glance.
On the other hand, a landowner is not so restricted in his use of his property that he cannot do so for fear of causing a slight inconvenience rather than damage to a neighbor. In line with the limitations on enjoyment set forth above, Louisiana has also stated:
Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor. Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbor's house, because this act occasions only an inconvenience, but not a real damage.
Consider this real-life scenario: Landowner A spends a large sum of money developing a rose garden. He tills the ground, removes unwanted roots, fertilizes it properly, works many hours planting roses on the south side of his home so that his roses will get the most sunlight every day, and prunes, sprays, and waters them daily. It is important to note that he chose the soutside of his property to build his rose garden because that side receives the most sunlight, and sunlight is a requirement for the full development of rose. Landowner B, who resides on the property next to Landowner A’s south-side property, adds an addition to his home and plants trees on his own land, none of which project beyond the boundary between the two estates. Yet, Landowner B’s addition and plantings now create shade over Landowner A’s rose garden so that they no longer receive the amount of sunlight that Landowner A had intended, and the growth and blooming of the roses are stunted. What can Landowner A do about the addition and plantings, if anything?
It is with this balancing act of "competing" rights of landowners that the exercise of such rights can often lead to conflict, that in turn lead to landowners seeking legal advice. Although the law governing property rights and obligations in Louisiana is vast and much too detailed to be covered in a website such as this, I want to at least give the reader some examples of property law that they will likely encounter every day.
The Classification of Things
A proper analysis of property laws begins with the classification of "things" because that classification defines what is and is not susceptible to ownership of things. Louisiana law divides things into common, public, and private; corporeals and incorporeals; and movables and immovables.
Common things may not be owned by anyone. They are such as the air and the high seas that may be freely used by everyone conformably with the use for which nature has intended them.
Public things are owned by the state or its political subdivisions in their capacity as public persons. Examples of public things owned by the state are running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore. Examples of public things that may be owned by political subdivisions of the state (such as parishes and cities) are streets and public squares. Public things and common things are subject to public use in accordance with applicable laws and regulations, such as the right to fish and shelter himself, provided he does not injure adjoining owners during his use.
Private things are owned by individuals, other private persons, and by the state or its political subdivisions in their capacity as private persons. Owners of private things may freely dispose of them in accordance with the laws regulating their disposition.
Corporeal and Incorporeal Things
Corporeals are things that have a body, whether animate or inanimate, and can be felt or touched.
Incorporeals are things that have no body, but are comprehended by the understanding, such as the rights of inheritance, servitudes, obligations, and right of intellectual property.
Immovables and Movables
Tracts of land, with their component parts, are immovables. Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees, are component parts of a tract of land when they belong to the owner of the ground. Buildings and standing timber are separate immovables when they belong to a person other than the owner of the ground.
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.
Things that are attached to a building and that, according to prevailing usages, serve to complete a building of the same general type, without regard to its specific use, are its component parts. Component parts of this kind may include doors, shutters, gutters, and cabinetry, as well as plumbing, heating, cooling, electrical, and similar systems. Things that are attached to a construction other than a building and that serve its principal use are its component parts. 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.
Corporeal movables are things, whether animate or inanimate, that normally move or can be moved from one place to another.
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 or after construction.
Materials separated from a building or other construction for the purpose of repair, addition, or alteration to it, with the intention of putting them back, remain immovables.
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. Interests or shares in a juridical person that owns immovables are considered as movables as long as the entity exists; upon its dissolution, the
right of each individual to a share in the immovables is an
Unharvested crops and ungathered fruits of trees are movables by anticipation when they belong to a person other than the landowner. When encumbered with security rights of third persons, they are movables by anticipation insofar as the creditor is concerned. The landowner may, by act translative of ownership or by pledge, mobilize by anticipation unharvested crops and ungathered fruits of trees that belong to him.
Finally, all things, corporeal or incorporeal, that the law does not consider as immovables, are movables.
Why is the Classification of Things So Important?
The classification of things is important because that classification often determines what is bought and sold when ownership of things is transferred.
For example, the transfer or encumbrance of an immovable includes its component parts. Thus, things incorporated in or attached to an immovable so as to become its component parts belong to the owner of the immovable.
The ownership of a thing includes by accession (meaning, the addition to property) the ownership of everything that it produces or is united with it, either naturally or artificially. In the absence of rights of other persons, the owner of a thing acquires the ownership of its natural and civil fruits. The young of animals belong to the owner of the mother of them.
Unless otherwise provided by law, the ownership of a tract of land carries with 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 the advantages that accrue from them, unless he is restrained by law or by rights of others.
Buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees may belong to a person other than the owner of the ground. Nevertheless, 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.
Separate ownership of a part of a building, such as a floor, an apartment, or a room, may be established only by a juridical act of the owner of the entire building when and in the manner expressly authorized by law.
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 without his consent. 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 subject to his obligation to restore the property to its former condition. If he does not remove them within 90 days after written demand, the owner of the land may, after the 90th day from the date of mailing the written demand, appropriate ownership of the improvements by providing an additional written notice by certified mail, and upon receipt of the certified mail by the owner of the improvements, the owner of the land obtains ownership of the improvements and owes nothing to the owner of the improvements. Until such time as the owner of the land appropriates the improvements, the improvements shall remain the property of he who made them and he shall be solely responsible for any harm caused by the improvements.
It is important to note that the above rules of ownership do not apply in the following instance: When buildings, other constructions permanently attached to the ground, or plantings are made on the separate property of a spouse with community assets or with separate assets of the other spouse, and when such improvements are made on community property with the separate assets of a spouse. The laws regulating the ownership of community and separate property apply.
A road may be either public or private. A public road is one that is subject to public use. The public may own the land on which the road is built or merely have the right to use it. A private road is one that is not subject to public use.
The classification of roads as public or private, and whether they are subject to public or private use, is one that affects many people.
As you will see in reading below under the category of "Predial Servitudes", a road can be owned by one person (making it private), and yet be compelled to allow its use (such as public) by other people if that is their only way of reaching their property from the nearest public road.
Servitudes - Easements
Louisiana has one major difference in terminology from the other 49 states when discussing "charges" (or burdens) on things or property for the benefit of others.
When one sees a ditch dug by a parish (the same as a "county" in other states) along a highway fronting a private yard, or a series of telephone or light poles installed along the boundary separate two differently-owned pieces of property, or a road that has been built to allow one landowner access to his property from a public highway across the land of another landowner, common law jurisdictions will refer to the "rights" acquired to dig, install, or build, as "easements". In Louisiana, we refer to them as "servitudes".
Louisiana recognizes two kinds of servitudes: personal servitudes and predial servitudes.
A personal servitude is a charge on a thing for the benefit of a person.
A personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use.
Usufruct is a real right of limited duration on the property of another. The features of the right vary with the nature of the things subject to it as consumables or nonconsumables.
The word "usufruct" comes from the Latin words "usus" and "fructus", meaning "use" and "fruits". When one has a usufruct over a thing, that person has the right to use the thing and enjoy the fruits from the thing - but he is not the owner of the thing. The owner of a thing subject to a usufruct is called a "naked owner" because although he is owner, he is deprived of the rights of use of and fruits from the thing - rights traditionally associated with full ownership of a thing.
Consumable things are those that cannot be used without being expended or consumed, or without their substance being changed, such as money, harvested agricultural products, stocks of merchandise, foodstuffs, and beverages. If the things subject to the usufruct are consumables, the usufructuary becomes owner of them. He may consume, alienate, or encumber them as he sees fit. At the termination of the usufruct he is bound either to pay to the naked owner the value that the things had at the commencement of the usufruct or to deliver to him things of the same quantity and quality.
Nonconsumable things are those that may be enjoyed without alteration of their substance, although their substance may be diminished or deteriorated naturally by time or
by the use to which they are applied, such as lands, houses, shares of stock, animals, furniture, and vehicles. If the things subject to the usufruct are
nonconsumables, the usufructuary has the right to possess them and to derive the utility, profits, and advantages that they may produce, under the obligation of preserving their substance. He is bound to use them as a prudent administrator and to deliver them to the naked owner at the termination of the usufruct.
The right of usufruct terminates in several ways:
Upon the death of the usufructuary.
If the usufruct was in favor of a juridical person (such as a partnership or a corporation) and that person is dissolved or liquidated, but if the juridical person is converted, merged or consolidated into a successor juridical person. In any event, a usufruct in favor of a juridical person shall terminate upon the lapse of thirty years from the date of the commencement of the usufruct.
If the usufruct was established for a term or subject to a condition, and the term expires or the condition occurs.
If the usufruct was of nonconsumables and those nonconsumables were permanently and totally lost or destroyed through accident, force majeure (an Act of God) or decay of the property subject to the usufruct.
Upon the passage of 10 years of nonuse of the usufruct.
When the usufruct and the naked ownership are united in the same person.
By the nake owner if the usufructuary commits waste, alienates things without authority, neglects to make ordinary repairs, or abuses his enjoyment in any other manner.
The person who has the usufruct renounces it.
Right of Habitation
Habitation is the nontransferable real right of a =natural person to dwell in the house of another. It is established and extinguished in the same manner as the right of usufruct.
A person having the right of habitation may reside in the house with his family, although not married at the time the right was granted to him.
A person having the right of habitation is entitled to the exclusive use of the house or of the part assigned to him, and, provided that he resides therein, he may receive friends, guests, and boarders.
A person having the right of habitation is bound to use the property as a prudent administrator and at the expiration of his right to deliver it to the owner in the condition in which he received it, ordinary wear and tear excepted.
When the person having the right of habitation occupies the entire house, he is liable for ordinary repairs, for the payment of taxes, and for other annual charges in the same manner as the usufructuary. When the person having the right of habitation occupies only a part of the house, he is liable for ordinary repairs to the part he occupies and for all other expenses and charges in proportion to his enjoyment.
The right of habitation is neither transferable nor heritable. It may not be alienated, let, or encumbered. It is "personal" in the sense that it may be exercised only by the person to whom the right was granted.
The right of habitation terminates at the death of the person having it unless a shorter period is stipulated.
Right of Use
The personal servitude of right of use confers in favor of a person a specified use of an estate less than full enjoyment. It may be established in favor of a natural person or a legal entity.
A right of use includes the rights contemplated or necessary to enjoyment at the time of its creation as well as rights that may later become necessary, provided that a greater burden is not imposed on the property unless otherwise stipulated in the title.
The right of use is transferable unless prohibited by law or contract. It is not extinguished at the death of
the natural person or at the dissolution of any other entity having the right unless the contrary is provided by law or contract.
A predial servitude is a charge on a servient estate for the benefit of a dominant estate, and both estates must belong to different owners.
The word "servient" is used because it actually "serves" the other estate by way of the manner in which the other estate has rights with regard to the servient estate. The word "dominant" is used because it "dominates" or burdens the estate that serves it. Neither contiguity nor proximity of the two estates is necessary for the existence of a predial servitude. It suffices that the two estates be so located as to allow one to derive some benefit from the charge on the other.
For a predial servitude to exist, there must be a benefit to the dominant estate. The benefit need not exist at the time the servitude is created; a possible convenience or a future advantage suffices to support a servitude. There is no predial servitude if the charge imposed cannot be reasonably expected to benefit the dominant estate.
A predial servitude is inseparable from the dominant estate and passes with it. The right of using the servitude cannot be alienated, leased, or encumbered separately from the dominant estate. The predial servitude continues as a charge on the servient estate when ownership changes.
The owner of the servient estate is not required to do anything. His obligation is to abstain from doing something on his estate or to permit something to be done on it. He may be required by convention or by law to keep his estate in suitable condition for the exercise of the servitude due to the dominant estate. A servitude may not impose upon the owner of the servient estate or his successors the obligation to pay a fee or other charge on the occasion of an alienation, lease, or encumbrance of the servient estate.
Predial servitudes may be natural, legal, and voluntary or conventional. Natural servitudes arise from the natural situation of estates; legal servitudes are imposed by law; and voluntary or conventional servitudes are established by juridical act, prescription, or destination of the owner.
An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow. The
owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the
servitude more burdensome.
The owner of an estate bordering on running water may use it as it runs for the purpose of watering his estate or for other purposes. The owner of an estate through which water runs, whether it originates there or passes from lands above, may make use of it while it runs over his lands. He cannot stop it or give it another direction and is bound to return it to its ordinary channel where it leaves his estate.
Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons.
For example, the owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may cause damage to a neighbor or to a passerby. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. When a building or other construction is in danger of falling a neighbor has a right of action to compel the owner to have it properly supported or demolished. When the danger is imminent the court may authorize the neighbor to do the necessary work for which he shall be reimbursed by the owner.
One who builds near a wall, whether common or not, is bound to take all necessary precautions to protect his neighbor against injury. Also, a landowner may
not build projections beyond the boundary of his estate. When a landowner constructs in good faith a building that encroaches on an adjacent estate and the owner of that estate does not
complain within a reasonable time after he knew or should have known of the
encroachment, or in any event 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 upon payment of compensation for the value of the servitude taken and for any other damage that the neighbor has suffered.
A landowner is bound to fix his roof so that rainwater does not fall on the ground of his neighbor.
Servitudes imposed for the public or common utility relate to the space which is to be left for the public use by the adjacent proprietors on the shores of navigable rivers and for the making and repairing of levees, roads, and other public or common works.
Neighbor Relations - Specific Cases
Even if we have neighbors with whom we get along, a day will come when one of them will do something with his property that will probably affect your ownership rights with respect to your property. The following are some basic principles that every property owner should have a cursory knowledge of so that he can protect his property rights.
Louisiana property laws give landowners broad rights with respect to how they use their property. But as I mentioned at the outset above, those rights are not without limitation.
"Good Fences Make Good Neighbors"
Robert Frost, the famous American poet, coined the phrase: "good fences made good neighbors". There is much truth in that, and Louisiana has regulated a great deal the constructions that people make to separate them from their neighbors.
The basic principle is that a landowner has the right to enclose his land. That enclosure can be accomplished with a wall, a fence, a ditch, bushes, and trees.
A landowner who builds first a wall between his and his neighbor’s land, may rest one-half of a partition wall on the land of his neighbor, provided that he uses solid masonry at least as high as the first story and that the width of the wall does not exceed 18 inches, not including the plastering which may not be more than three inches in thickness. The wall thus raised becomes common if the neighbor is willing to contribute one-half of its cost. If the neighbor refuses to contribute, he preserves the right to make the wall common in whole or in part, at any time, by paying to the owner one-half of the current value of the wall, or of the part that he wishes to make common. Necessary repairs to a common wall, including partial rebuilding, are to be made at the expense of those who own it in proportion to their interests.
A fence on a boundary is presumed to be common unless there is proof to the contrary. When adjoining lands are enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences by which the respective lands are separated. When adjoining lands are not enclosed, a landowner may compel his neighbors to contribute to the expense of making and repairing common fences only as prescribed by local ordinances.
A ditch between two estates is presumed to be common unless there be proof to the contrary. Adjoining owners are responsible for the maintenance of a common ditch.
By far, the biggest disputes between landowners and enclosures arise from trees, bushes, and plants that serve as a boundary between neighboring estates.
Trees, bushes, and plants on the boundary are presumed to be common unless there be proof to the contrary. An adjoining owner has the right to demand the removal of trees, bushes, or plants on the boundary that interfere with the enjoyment of his estate, but he must bear the expense of removal. A landowner has the right to demand that the branches or roots of a neighbor's trees, bushes, or plants, that extend over or into his property be trimmed at the expense of the neighbor. A landowner does not have this right if the roots or branches do not interfere with the enjoyment of his property.
The 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. This right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate. The
owner of the enclosed estate may construct on the right of way the type of road or railroad reasonably necessary for the exercise of the servitude. The owner of the enclosed estate may not
demand the right of passage anywhere he chooses - that passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least
injurious to the intervening lands.
But, if an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors. This could occur if a landowner is not careful in dividing his land into lots and then selling them all but one that he reserves for himself. If he reserves one in the middle of all of the surrounding lots he just sold and he did not provide for passage to the nearest public road, he cannot force his neighbors to grant him such a passage through their property.
What if a person acquires land in the case of partition, or a voluntary alienation of an estate or of a part thereof, and the land he acquires becomes enclosed? In such a case, as
he is not responsible for "landlocking" himself, passage shall be furnished gratuitously by the owner of the land on which the 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. The owner of the enclosed estate has no right to the relocation of this
servitude after it is fixed. The owner of the servient estate has the right to demand relocation of the servitude to a more convenient place at his own expense, provided that it affords the same
facility to the owner of the enclosed estate. The right for indemnity against the owner of the enclosed estate may be lost by prescription. The accrual of this prescription has no
the right of passage.
Ownership by Possession - "Squatter's Rights"
Most people have heard of the principle of ownership where someone "sets up a homestead" by clearing an area, fencing it in, and taking care of it for a certain number of years. After a while, that person can become owner of that land based on his state of mind when he cleared the land and began occupying it, and based on the number of years he occupied it without interruption.
Louisiana has codified this principle so that it is still a viable method of becoming owner of land. Louisiana calls it "acquisitive prescription" because one may acquire ownership or other real rights by possession for a specified period of time. The two relevant time periods are 10 and 30 years.
Acquisition after Ten Years
The requisites for the acquisitive prescription of ten years are:
possession of ten years
- good faith
- just title, and,
- a thing susceptible of acquisition by prescription.
The possessor must have corporeal possession (that is, physical possession of land as evidenced by the fencing in of the property, maintaining the property within a defined boundary, or constructing buildings or planting crops on that property), or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal. For purposes of acquisitive prescription, a possessor is in good faith when he reasonably believes, in light of objective considerations, that he is owner of the thing he possesses. Good faith is presumed. Neither error of fact nor error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses. It is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years.
A just title is a juridical act, such as a sale, exchange, or donation, sufficient to transfer ownership or another real right. The act must be written, valid in form, and filed for registry in the conveyance records of the parish in which the immovable is situated.
Acquisition after Thirty Years
Ownership and other real rights in immovables may be acquired in the same manner as described above, except the prescriptive (time) period is 30 years if the possessor does not have just title or did not begin possession in good faith. This is the type of acquisition of ownership that most people are familiar with, and was used quite often several centuries ago as a means of becoming owner of land, especially in the Atchafalaya Basin.
For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed (that is, only that property that can be readily identified as in possession of someone as evidenced by a fence, cleared land, buildings and crops on the land, etc.). The rules governing acquisitive prescription of ten years apply to the prescription of thirty years to the extent that their application is compatible with the prescription of thirty years.
Why is Acquisitive Prescription - Especially Based on 30 Years - Fair?
Long ago, society found it important that property be maintained. If one owned property, one had an obligation to properly maintain that property. The principle that developed as a result of that line of thinking is that if someone owns property and does not even bother to "look" at it for a 30 year period of time, whereas someone else has occupied that property, cared for it, built it up, and used it in a lawful manner, the original owner "foreits" his right of ownership through willful neglect.
The preceding discussion is just a small part of the property laws that govern our civil relationships with our neighbors and other landowners. As with most disputes, time periods (known as "prescription") play a large role in acquiring and losing rights in property.
And the subject areas I discussed were chosen because they occur most often in my experience. Louisiana has many, many more laws regarding Property Law - do not think of this as a treatise on the entitety of Property Law in Louisiana.
As I have said throughout my website, never rely solely on what you read on this site as your only guide if you become part of a property dispute. Always seek the advice of an attorney as soon as possible - time periods are crucial with property disputes.