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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.

Servitudes – Examples of predial servitudes

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Servitudes – Examples of predial servitudes

Art. 699. Examples of predial servitudes. The following are examples of predial servitudes: Rights of support, projection, drip, drain, or of preventing drain, those of view, of light, or of preventing view or light from being obstructed, of raising buildings or walls, or of preventing them from being raised, of passage, of drawing water, of aqueduct, of watering animals, and of pasturage.

Art. 700. Servitude of support. The servitude of support is the right by which buildings or other constructions of the dominant estate are permitted to rest on a wall of the servient estate. Unless the title provides otherwise, the owner of the servient estate is bound to keep the wall flt for the exercise of the servitude, but he may be relieved of this charge by abandoning the wall.

Art. 701. Servitude of view. The servitude of view is the right by which the owner of the dominant estate enjoys a view; this includes the right to prevent the raising of constructions on the servient estate that would obstruct the view.

Art. 702. Prohibition of view. The servitude of prohibition of view is the right of the owner of the dominant estate to prevent or limit openings of view on the servient estate.

Art. 703. Servitude of light. The servitude of light is the right by which the owner of the dominant estate is entitled to make openings in a common wall for the admission of light; this includes the right to prevent the neighbor from making an obstruction.

Art. 704. Prohibition of light. The servitude of prohibition of light is the right of the owner of the dominant estate to prevent his neighbor from making an opening in his ow wall for the admission of light or that limits him to certain lights only.

Art. 705. Servitude of passage. The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, utilities, or vehicles are permitted to pass through the servient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic or utility necessary for the reasonable use of the dominant estate.

Servitudes – Apparent and non-apparent predial servitudes

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Servitudes – Apparent and non-apparent predial servitudes

Art. 707. Servitudes; apparent or nonapparent. Predial servitudes are either apparent or nonapparent. Apparent servitudes are those that are perceivable by exterior signs, works, or constructions; such as a roadway, a window in a common wall, or an aqueduct. Nonapparent servitudes are those that have no exterior sign of their existence; such as the prohibition of building on an estate or of building above a particular height.

Art. 739. Acquisition by title only. Nonapparent servitudes may be acquired by title only, including a declaration of destination under Article 741.

Servitudes – Affirmative and negative predial servitudes

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Servitudes – Affirmative and negative predial servitudes

Art. 706. Servitudes; affirmative or negative. Predial servitudes are either affirmative or negative. Affirmative servitudes are those that give the right to the owner of the dominant estate to do a certain thing on the servient estate. Such are the servitudes of right of way, drain, and support. Negative servitudes are those that impose on the owner of the servient estate the duty to abstain from doing something on his estate. Such are the servitudes of prohibition of building and of the use of an estate as a commercial or industrial establishment.

Servitudes – Conventional or voluntary servitudes

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Servitudes – Conventional or voluntary servitudes

Art. 697. Right to establish predial servitudes; limitations. Predial servitudes may be established by an owner on his estate or acquired for its benefit. The use and extent of such servitudes are regulated by the title by which they are created, and, in the absence of such regulation, by the following rules.

Art. 698. Property susceptible of servitudes. Predial servitudes are established on, or for the benefit of, distinct corporeal immovables.

Art. 731. Charge expressly for the benefit of an estate. A charge established on an estate expressly for the benefit of another estate is a predial servitude although it is not so designated.

Art. 733. Interpretation; benefit of dominant estate. When the right granted be of a nature to confer an advantage on an estate, it is presumed to be a predial servitude.

Art. 734. Interpretation; convenience of a person. When the right granted is merely for the convenience of a person, it is not considered to be a predial servitude, unless it is acquired by a person as owner of an estate for himself, his heirs and assigns.

Servitudes – Right of passage

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Servitudes – Right of passage

Art. 689. Enclosed estate; right of passage. The owner of an estate that has no access to a public road or utility may claim a right of passage over neighboring property to the nearest public road or utility. He is bound to compensate his neighbor for the right of passage and to indemnify his neighbor for the damage he may occasion. New or additional maintenance burdens imposed upon the servient estate or intervening lands resulting from the utility servitude shall be the responsibility of the dominant estate.

Art. 690. Extent of passage. The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic or utility that is reasonably necessary for the use of that estate.

Art; 691. Constructions. The owner of the enclosed estate may construct on the right-of-way the type of road, utility, or railroad reasonably necessary for the exercise of the servitude. The utility crossing shall be constructed in compliance with all appropriate and applicable federal and state standards so as to mitigate all hazards posed by the passage and the particular conditions of the servient estate and intervening lands.

Art. 692. Location of passage. The owner of the enclosed estate may not demand the right of passage or the right-of-way for the utility anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road or utility at the location least injurious to the intervening lands. The location of the utility right-of-way shall coincide with the location of the servitude of passage unless and alternate location providing access to the nearest utility is least injurious to the servient estate and intervening lands. The court shall evaluate and determine that the location of the servitude of passage or utility shall not affect the safety of operations or significantly interfere with the operations of the owner of the servient estate or intervening lands prior to the granting of the servitude of passage or utility.

Art. 693. Enclosed estate; voluntary act. 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.

Art. 694. Enclosed estate; voluntary alienation or partition. When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated or partitioned becomes enclosed, 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 or utility, and even if the act of alienation or partition does not mention a servitude of passage.

Art. 695. Relocation of servitude. 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.

Servitudes – Common walls and enclosures

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Servitudes – Common walls and enclosures

Art. 673. Common wall servitude. A landowner who builds first 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 eighteen inches, not including the plastering which may not be more than three inches in thickness.

Art. 685. Common fences. 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.

Art. 686. Common ditches. 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.

Servitudes – Legal servitudes

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Servitudes – Legal servitudes

Art. 659. Legal servitudes; notion. Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons.

Art. 660. Keeping buildings in repair. The owner is bound to keep his buildings in repair so that neither their fall nor that of any part of their materials may ca.us damage to a neighbor or to a passerby.

Art. 667. Limitations on use of property. 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.

Art. 672. Other legal servitudes. Other legal servitudes relate to common enclosures, such as common walls, fences and ditches, and to the right of passage for the benefit of enclosed estates.