Louisiana Notary

A Civil Law Tradition

Civil Law Basics

Conveyance and Mortgage of Immovables – Counterletters

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Conveyance and Mortgage of Immovables – Counterletters

C.C. art. 2025. Definition; simulation and counterletter. A contract is a simulation when, by mutual agreement, it does not express the true intent of the parties. If the true intent of the parties is expressed in a separate writing, that writing is a counterletter.

Art. 2026. Absolute simulation. A simulation is absolute when the parties intend that their contract shall produce no effects between them. That simulation, therefore, can have no effects between the parties.

Art. 2027. Relative simulation. A simulation is relative when the parties intend that their contract shall produce effects between them though different from those recited in their contract. A relative simulation produces between the parties the effects they intended if all requirements for those effects have been met.

Art. 2028. Effects as to third persons. Any simulation, either absolute or relative, may have effects as to third persons. Counterletters can have no effects against third persons in good faith. Nevertheless, if the counterletter involves immovable property, the principles of recordation apply with respect to third persons.

Conveyance and Mortgage of Immovables – Paraph

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Conveyance and Mortgage of Immovables – Paraph

C.C. art. 3325. Paraph of notes or written obligations secured by a mortgage, privilege, or other encumbrance. A. Except as provided in Paragraph B of this Article, a note or other written obligation which is secured by an act of mortgage, or an act evidencing a privilege or other encumbrance, need not be paraphed for identification with such mortgage, privilege, or other encumbrance, and need not recite that it is secured by such mortgage, privilege, or other encumbrance.

B. A notary before whom is passed an act of mortgage, or an act evidencing a privilege or other encumbrance that secures a note or other written obligation, shall paraph the obligation for identification with his act if the obligation is presented to him for that purpose. The paraph shall state the date of the act and shall be signed by the notary. The notary shall also mention in his act that he has paraphed the obligation. Failure to do so shall render the paraph ineffective. The paraph is prima fade evidence that the paraphed obligation is the one described in the act.

Revision comments – 1992. (a) This Article restates the former provisions of law relative to the notary’s paraph and also makes a change in the law. It does not prescribe a particular form for the paraph, which through long practice in the state is an inscription beginning “Ne Varietur.” Any reference on the instrument, signed by the notary, and evidencing that it is to be identified with a particular act of a certain date of the notary will suffice.

(b) R.S. 9:5555 and 9:5556 provide for proof in executory proceedings of obligations not paraphed for identification with the mortgage, and for the manner of dealing with the mortgagee of record in such cases. A mortgage may secure obligations that are not in writing. It may secure future obligations of indefinite terms, It need not describe the terms of the obligations, nor must it be in authentic form. In all of these cases it would be impractical, if not impossible to require the paraph of a notary. This Article permits the paraph in those cases where the parties desire to continue prior practice – which is unaffected by this revision. Persons who take notes or other written obligations secured by a mortgage, but who prefer to be regulated by R.S. 9:5555 and 5556, may do so simply by directing the notary not to paraph the instrument. The failure of the notary to mention the paraph in his instrument renders the paraph ineffective and therefore makes those Sections applicable even if the note or instrument itself erroneously is paraphed.

Conveyance and Mortgage of Immovables – Confession of judgment

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Conveyance and Mortgage of Immovables – Confession of judgment

C.C.P. Art. 2632. Act importing a confession of judgment. An act evidencing a mortgage or privilege imports a confession of judgment when the obligor therein acknowledges the obligation secured thereby, whether then existing or to arise thereafter, and confesses judgment thereon if the obligation is not paid at maturity.

Conveyance and Mortgage of Immovables – Executory proceedings defined

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Conveyance and Mortgage of Immovables – Executory proceedings defined

C.C.P. Art. 2631. Use of executory proceedings. Executory proceedings are those which are used to effect the seizure and sale of property, without previous citation and judgment, to enforce a mortgage or privilege thereon evidenced by an authentic act importing a confession of judgment, and in other cases allowed by law.

Conveyance and Mortgage of Immovables – Form required

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Conveyance and Mortgage of Immovables – Form required

Art. 1541. Form required for donations. A donation inter vivos shall be made by authentic act under the penalty of absolute nullity, unless otherwise expressly permitted by law.

Art. 1542. Identification of donor, donee, and the thing donated required The act of donation shall identify the donor and the donee and describe the thing donated. These requirements are satisfied if the identities and description are contained in the act of donation or are reasonably ascertainable from information contained in it, as clarified by extrinsic evidence if necessary.

Art. 1544. Donation effective from time of acceptance. A donation inter vivos is without effect until it is accepted by the donee. The acceptance shall be made during the lifetime of the donor. The acceptance of a donation may be made in the act of donation or subsequently in writing. When the donee is put into corporeal possession of a movable by the donor, possession by the donee also constitutes acceptance of the donation.

Art. 1546. Acceptance during lifetime of donee. The acceptance shall be made during the lifetime of the donee. If the donee dies without having accepted the donation, his successors may not accept for him.

Conveyance and Mortgage of Immovables – Donation inter vivos

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Conveyance and Mortgage of Immovables – Donation inter vivos

C.C. art. 1468. Donation inter vivos, definition. A donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another, called the donee, who accepts it.

Art. 1529. Donation of future property, nullity. A donation inter vivos can have as its object only present property of the donor. If it includes future property, it shall be null with regard to that property.

Conveyance and Mortgage of Immovables – Giving in payment

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Conveyance and Mortgage of Immovables – Giving in payment

Art. 2655. Giving in payment, definition. Giving in payment is a contract whereby an obligor gives a thing to the obligee, who accepts it in payment of a debt.

Art. 2656. Delivery essential to a giving in payment. Delivery of the thing is essential to the perfection of a giving in payment.

Art. 2657. Giving in partial payment. An obligor may give a thing to the obligee in partial payment of a debt. A giving in partial payment extinguishes the debt in the amount intended by the parties. If the parties’ intent concerning the amount of the partial extinguishment cannot be ascertained, it is presumed that they intended to extinguish the debt in the amount of the fair market value of the thing given in partial payment.

Art. 2659. Application of general rules of sale. The giving in payment is governed by the rules of the contract of sale, with the differences provided for in this Chapter.

Conveyance and Mortgage of Immovables – Sale with right of redemption

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Conveyance and Mortgage of Immovables – Sale with right of redemption

Art. 2567. 1 Right of redemption, definition. The parties to a contract of sale may agree that the seller shall have the right of redemption, which is the right to take back the thing from the buyer.

Revision Comments-1993. (b) A sale with a right of redemption is distinguishable from a sale with the option to repurchase. While the intent of the parties controls the classification of the transaction as redemption or option-see Delcambre v. Dubois, 263 So.2d 96 (La.App. 3d Cir. 1972)-in the usual sale subject to redemption, the vendor must reserve the right to-repurchase. If, on the contrary the right to repurchase is granted by the vendee, the contract is a sale with option to repurchase and not a sale with a right of redemption. See Culpepper’s dissent in Delcambre v. Dubois, (supra), at 107; Glover v. Abney, 160 La. 175, 106 So. 735 (1925). In Pitts v. Lewis, 7 La.Ann. 552 (1852), the court stated: It is elementary that there is no vente a remere unless the right to take back the property, on refunding the price, be stipulate d in the act of sale, so as to form one of the reservations of it, and that if it is appended by a subsequent act to a sale originally pure and simple, it is either a resale or a promise to sell. 7 La. Ann. 552, at pp. 552-553.

(c) The exercise of redemption does not involve a new sale. When the right to redeem is exercised it effects a dissolution of the sale and of the transfer of the property which was the consequence of it. See 2 Planiol et Ripert, Traite elementaire de droit civil, § 1582 (1959) (English translation by the Louisiana State Law Institute).

(d) The price of redemption or remere of the property sold may be higher or lower than the purchase price paid by the original vendee. See 2 Planiol et Ripert, Traite elementaire de droit civil, § 1579 (1959) (English translation by the Louisiana State Law Institute). Thus in a highly inflationary period contracting for a higher price might be very realistic, since it would tend to protect the buyer’s investment against inflation.

Art. 2568. Limitation on duration. The right of redemption may not be reserved for more than ten years when the thing sold is immovable, or more than five years when the thing sold is movable. If a longer time for redemption has been stipulated in the contract that time must be reduced to either ten or five years, depending on the nature of the thing sold.

Revision Comments-1993. (b) Under this Article, if no delay for the exercise of redemption is stipulated, the right is presumed to last the maximum time allowed by law. Delcambre v. Dubois, 263 So.2d 96 (La.App. 3d Cir. 1972).

(c) Under this Article, the running of the period allowed for redemption is not subject to suspension or interruption. See C.C. art. 2571, infra.

Art. 2570. Effect of failure to exercise right within time stipulated. If the seller does not exercise the right of redemption within the time allowed by law, the buyer becomes unconditional owner of the thing sold.

Art. 2571. Application of time limit against all persons including minors The period for redemption is preemptive and runs against all persons including minors. It may not be extended by the court.

Conveyance and Mortgage of Immovables – Quitclaim deed

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Conveyance and Mortgage of Immovables – Quitclaim deed

Art. 2443. Purchase of a thing already owned. A person cannot purchase a thing he already owns. Nevertheless, the owner of a thing may purchase the rights of a person who has, or may have, an adverse claim to the thing.

Art. 2500. Eviction, definition, scope of warranty. The seller warrants the buyer against eviction, which is the buyer’s loss of, or danger of losing, the whole or part of the thing sold because of a third person’s right that existed at the time of the sale. The warranty also covers encumbrances on the thing that were not declared at the time of the sale, with the exception of apparent servitudes and natural and legal non-apparent servitudes, which need not be declared. If the right of the third person is perfected only after the sale through the negligence of the buyer, though it arises from facts that took place before, the buyer has no claim in warranty.

Art. 2502. Transfer of rights to a thing. A person may transfer to another whatever rights to a thing he may then have, without warranting the existence of any such rights. In such a case the transferor does not owe restitution of the price to the transferee in case of eviction, nor may that transfer be rescinded for lesion. Such a transfer does not give rise to a presumption of bad faith on the part of the transferee and is a just title for the purposes of acquisitive prescription. If the transferor acquires ownership of the thing after having transferred his rights to it, the after-acquired title of the transferor does not inure to the benefit of the transferee.

Conveyance and Mortgage of Immovables – Requirements when property mortgaged

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Conveyance and Mortgage of Immovables – Requirements when property mortgaged

R.S. 9:2946. Unlawful to require mortgage notes when property encumbered; act of sale. It shall be unlawful for any seller in a bond for deed contract to require promissory notes to represent the purchase price or any portion thereof, if the property should be encumbered with a mortgage or privilege. Upon the payment to the escrow agent of the sum necessary to release the property, the seller shall execute a deed to the buyer and may then exact one or more mortgage notes to represent any portion of the unpaid purchase price. Should the property not be encumbered with a mortgage or privilege, and a note has been executed to represent all or.a part of the price under the bond for deed contract, when the buyer shall become entitled to demand a deed, the seller shall execute an authentic sale and the notary passing it shall require the production of the note or notes and shall cancel them at the time of passing the sale.