Louisiana Notary

A Civil Law Tradition

Servitudes

Servitudes – Building restrictions

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Servitudes – Building restrictions

Art. 775. Building restrictions. Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.

Art. 776. Establishment. Building restrictions may be established only by juridical act executed by the owner of an immovable or by all the owners of the affected immovables. Once established, building restrictions may be amended or terminated as provided in this Title.

Art. 777. Nature and regulation. Building restrictions are incorporeal immovables and real rights likened to pre­dial servitudes. They are regulated by application of the rules governing predial servitudes to the extent that their application is compatible with the nature of building restrictions.

Art. 778. Affirmative duties. Building restrictions may impose on owners of immovables affirmative duties that are reasonable and necessary for the maintenance of the general plan. Building restrictions may not impose upon the owner of an immovable or his successors the obligation to pay a fee or other charge on the occasion of an alienation, lease or encumbrance of the immovable.

Art. 780. Amendment and termination of building restrictions. Building restrictions may be amended, whether such amendment lessens or increases a restriction, or may terminate or be terminated, as provided in the act that establishes them. In the absence of such provision, building restrictions may be amended or terminated for the whole or a part of the restricted area by agreement of owners representing more than one-half of the land area affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for at least fifteen years, or by agreement of both owners representing two-thirds of the land area affected and two-thirds of the owners of the land affected by the restrictions, excluding streets and street rights-of-way, if the restrictions have been in effect for more than ten years. 129, §1; Acts 1999, No. 309, §1.

Art. 781. Termination; liberative prescription. No action for injunction or for damages on account of the violation of a building restriction may be brought after two years from the commencement of a noticeable violation. After the lapse of this period, the immovable on which the violation occurred is freed of the restriction that has been violated.

Art. 782. Abandonment of plan or of restriction. Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. When the entire plan is abandoned the affected area is freed of all restriction ; when a particular restriction is abandoned, the affected area is freed of that restriction only.

Servitudes – Renunciation

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Servitudes – Renunciation

Art. 771. Renunciation of servitude. A predial servitude is extinguished by an express and written renunciation by the owner of the dominant estate.

Art. 772. Renunciation by owner. A renunciation of a servitude by a co-owner of the dominant estate does not discharge the servient estate, but deprives him of the right to use the servitude.

Servitudes – Confusion

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Servitudes – Confusion

Art. 765. Confusion. A predial servitude is extinguished when the dominant and the servient estates are acquired in their entirety by the same person·.

Art. 766. Resolutory condition. When the union of the two estates is made under resolutory condition, or if it cease by legal eviction, the servitude is suspended and not extinguished.

Art. 768. Confusion; separate and community property. Confusion does not take place between separate property and community property of the spouses. Thus, if the servient estate belongs to one of the spouses and the dominant estate is acquired as a community asset, the servitude continues to exist.

Art. 769. Irrevocability of extinction by confusion. A servitude that has been extinguished by confusion may be reestablished only in the manner by which a servitude may be created.

Art. 770. Abandonment of servient estate. A predial servitude is extinguished by the abandonment of the servient estate, or of the part on which the servitude is exercised. It must be evidenced by a written act. The owner of the dominant estate is bound to accept it and confusion takes place.

Servitudes – Prescription of nonuse

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Servitudes – Prescription of nonuse

Art. 753. Prescription for nonuse. A predial servitude is extinguished by nonuse for ten years.

Art. 754. Commencement of nonuse. Prescription of nonuse begins to run for affirmative servitudes from the date of their last use, and for negative servitudes from the date of the occurrence of an event contrary to the servitude. An event contrary to the servitude is such as the destruction of works necessary for its exercise or the construction of works that prevent its exercise.

Art. 755. Obstacle to servitude. If the owner of the dominant estate is prevented from using the servitude by an obstacle that he can neither prevent nor remove, the prescription of nonuse is suspended on that account for a period of up to ten years.

Art. 756. Failure to rebuild dominant or servient estate. If the servitude cannot be exercised on account of the destruction of a building or other construction that belongs to the owner of the dominant estate, prescription is not suspended. If the building or other construction belongs to the owner of the servient estate, the preceding article applies.

Art. 757. Sufficiency of acts by third persons. A predial servitude is preserved by the use made of it by anyone, even a stranger, if it is used as appertaining to the dominant estate.

Art. 759. Partial use. A partial use of the servitude constitutes use of the whole.

Art. 762. Use by co-owner. If the dominant estate is owned in indivision, the use that a co-owner makes of· the servitude prevents the running of prescription as to all. If the dominant estate is partitioned, the use of the servitude by each owner preserves it for his estate only.

Servitudes – Special rules for creating predial servitudes by title

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Servitudes – Special rules for creating predial servitudes by title

Art. 710. Naked owner. The naked owner may establish a predial servitude that does not infringe on the rights of the usufructuary or that is to take at the effect at the termination of the usu­fruct. The consent of the usufructuary is required for the establishment of any other predial servitude.

Art. 711. Usufructuary. The usufructuary may not establish on the estate of which he has the usufruct any charges in the nature of predial servitudes.

Art. 709. Mandatary. A mandatary may establish a predial servitude if he has an express and special power to do so.

Art. 735. Persons acquiring servitude. A predial servitude may be acquired for the benefit of the dominant estate by the owner of that estate or by any other person acting in his name or in his behalf.

Art. 736. Capacity to acquire servitude. An incompetent may acquire a predial servitude for the benefit of his estate without the assistance of the administrator of his patrimony or of his tutor or curator.

Art. 712. Owner for a term or under condition. A person having ownership subject to a term or the happening of a condition may establish a predial servitude, but it ceases with his right.

Art. 713. Purchaser with reservation of redemption. A purchaser under a reserved right of redemption may establish a predial servitude on the property, but it ceases if the seller exercises his right of redemption. A predial servitude on an estate owned in indivision can only be established with the consent of all the co-owners. C.C. art. 714.

Art. 714. Co-owner; servitude on entire estate. A predial servitude on an estate owned in indivision may be established only with the consent of all the co-owners. “When a co-owner purports to establish a servitude on the entire estate, the con­tract is not null; but, its execution is suspended until the consent of all co-owners is obtained.

Art. 716. Servitude on undivided part. “When a co-owner has consented to the establishment of a predial servitude on his undivided part only, the consent of the other co-owners is not required, but the exercise of the servitude is suspended until his divided part is determined at the termination of the state of indivision.

Art. 717. Partition in kind. If the estate owned in indivision is partitioned in kind, the servitude established by a co-owner on his undivided part burdens only the part allotted to him.

Art. 718. Partition by licitation. If the estate is partitioned by licitation and the co-owner who consented to the establishment of the predial servitude acquires the ownership of the whole, the servitude burdens the entire estate as if the co-owner had always been sole owner. If the entire estate is adjudicated to any other person the right granted by the co­-owner is extinguished.

Art. 726. Servitude on after-acquired property. Parties may agree to establish a predial servitude on, or for the benefit of, an estate of which one is not then the owner. If the ownership is acquired, the servitude is established. Parties may agree that a building not yet built will be subjected to a servitude or that it will have the benefit of a servitude when it is built.

Art. 720. Additional servitudes. The owner of the servient ,estate may establish thereon additional servitudes, provided they do not affect adversely the rights of the owner of the dominant estate.

Art. 724. Multiple dominant or servient estates. A predial servitude may be established on several estates for the benefit of one estate. One estate may be subjected to a servitude for the benefit of several estates.

Art. 725. Reciprocal servitudes. The title that establishes a servitude for the benefit of the dominant estate may also establish a servitude on the dominant estate for the benefit of the servient estate.

Art. 727. Servitude on part of an estate. A predial servitude may be established on a certain part of an estate, if that part is sufficiently described.

Art. 728. Limitation of use. The use of a predial servitude may be limited to certain times. Thus, the rights of drawing water and of passage may be confined to designated hours.

Art. 750. Location of servitude when the title is silent. If the title does not specify the location of the servitude, the owner of the servient estate shall designate the location.

Art. 721. Servitude on mortgaged property. A predial servitude may be established on mortgaged property. If the servitude diminishes the value of the estate to the substantial detriment of the mortgagee, he may demand immediate payment of the debt. If there is a sale for the enforcement of the mortgage the property is sold free of all servitudes established after the mortgage. In such a case, the acquirer of the servitude has an action for the restitution of its value against the owner who established it.

Art. 723. Servitudes on public things. Predial servitudes may be established on public things, including property of the state, its agencies and political subdivisions.

Servitudes – Destination of the owner

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Servitudes – Destination of the owner

Art. 741. Destination of the owner. Destination of the owner is a relationship established between two estates owned by the same owner that would be a predial servitude if the estates belonged to different owners. When the two estates cease to belong to the same owner, unless there is express provision to the contrary, an apparent servitude comes into existence of right and a nonapparent servitude comes into existence if the owner has previously filed for registry in the conveyance records of the parish in which the immovable is located a formal declaration establishing the destination.

Art. 742. Acquisitive prescription. The laws governing acquisitive prescription of immovable property apply to apparent servitudes. An apparent servitude may be acquired by peaceable and uninterrupted possession of the right for ten years in good faith and by just title; it may also be acquired by uninterrupted possession for thirty years without title or good faith.

Servitudes – Establishing predial servitudes

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Servitudes – Establishing predial servitudes

Art. 740. Modes of acquisition of servitudes. Apparent servitudes may be acquired by title, by destination of the owner, or by acquisitive prescription.

Art. 708. Establishment of predial servitudes. The establishment of a predial servitude by title is an alienation of a part of the property to which the laws governing alienation of immovables apply.

Art. 722. Modes of establishment. Predial servitudes are established by all acts by which immovables may be transferred. Delivery of the act of transfer or use of the right by the owner of the dominant estate constitutes tradition.