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Property III
possession, possessory action, occupancy and quasi-occ, AP
| Question | Answer |
|---|---|
| Possession is ... | factual authority over a thing with the intent to keep it as your own; Possession is a matter of fact (Art. 3422) |
| effects of possession | Possession alone bears no rights, but possession for a period of time gives rise to certain rights; Presumption of ownership; substantive rights; acquisitive prescription; possessory action |
| effects of possession ... presumption of ownership | A possessor is presumed to be owner, so the possessor has same rights of the owner until the true owner appears and establishes his rights (3423 and Peloquin); Reasoning: it is easier to prove possession than ownership |
| effects of possession ... substantive rights ... 3 types | accession, acquisitive prescription, possessory protection |
| effects of possession ... substantive rights ... accession ... what is accession? | process whereby an owner of a thing acquires ownership of the things that are attached to the land or produced by it |
| effects of possession ... substantive rights ... accession ... rights wrt fruits and products | GF possessor acquires ownership of fruits he has gathered. If evicted by owner, he's entitled to reimbursement of expenses for unable to gather (486); BF possessor is bound to restore to owner the fruits he has gathered, or their value (486) |
| effects of possession ... substantive rights ... accession ... rights wrt enhancements ... by good faith possessor | owner of immovable cannot demand their demolition and removal; and the owner must pay the good faith possessor the value of the enhancement or enhanced value of the immovable (496); why D in Falgoust wanted to be called a real possessor |
| effects of possession ... substantive rights ... accession ... rights wrt enhancements ... by bad faith possessor | owner of the immovable can demand their demolition at the expense of the possessor; if owner does not demolish, then he still must pay the bad faith possessor their value of the enhanced value of the immovable (497) |
| effects of possession ... substantive rights ... acquisitive prescription | If you possess something for long enough, you might become owner |
| effects of possession ... substantive rights ... possessory protection | Provided possession lasts for a year, it gives rise to a legally protective interest (i.e. right to possess) |
| 3 types of possession | corporeal, civil, constructive |
| types of possession ... corporeal | the exercise of physical acts of use, detention, or enjoyment over a thing (Art. 3425) |
| types of possession ... civil | retention of an acquired possession solely by virtue of an intent to possess as owner; this occurs after corporeal possession ceases (Art. 3431) |
| types of possession ... constructive | possession by virtue of title (3426); requirements: Corporeal possession of a part (3426); Title, be it valid of invalid (invalid covered in 3426 B); You can be in good faith or bad faith (3426 B) |
| acquiring possession ... 2 elements | corporeal element (corpus) and intent element (animus) (3424 – terms from Savigny) |
| acquiring possession ... what is corpus? | Corporeal possession is the exercise of physical acts of use, detention or enjoyment over a thing (Art. 3425) |
| acquiring possession ... corpus ... what is a "physical act"? (4 examples) | Maintaining a pipeline under grant (Manson Realty); Paying taxes or leasing land are not (Manson Realty); Grazing cattle on the land may or may not be enough (dicta of Harper v. Willis); Painting boundary line is enough to show possession (Antulovich) |
| acquiring possession ... corpus ... if you have title to the land ... | the requirements for proving corporeal possession are laxer (Manson Realty); Theory: if I have title I have a greater claim to the property; Counter theory: Corpus deals with possession, not ownership |
| acquiring possession ... corpus ... requirements depending on nature of land? | The requirements for proving corporeal possession change with the nature of the land (Chamberlain v. Abadie) |
| acquiring possession ... what is animus? | Animus is the intention to possess as owner; it is the subjective state of mind that is determined by the facts and circumstances (Harper); Paying taxes could show animus |
| acquiring possession ... presumption of animus? | Animus is presumed (3427), but facts and circumstances can overcome animus(Harper); Animus is disproved if possession begins in the name of and for another (3427) |
| acquiring possession ... animus ... bad faith | one can know not owner and still have intent to possess as owner; Ex: I have corp'l possn of land, but say that I know I don't own land; I'm in bf bc I know I don't own land, but doesn't discount possibility that I am possessing land with intent to own it |
| acquiring possession ... animus ... Ex: I have corporeal possn and an invalid title to the land, which I know is invalid. | I would almost certainly have animus because going through the process of obtaining the title (albeit invalid) shows an intent to possess the land as owner |
| acquiring possession ... can corpus and animus be derived? | Corpus and animus can be derived |
| extent of possession ... with title ... | Title = act sufficient to transfer ownership (ex: sale, donation) (3426 b); Extent of possn is everything w/in limits of title; This is constructive possession; legal fiction bc you don’t really have possession over everything (lacking corpus) |
| extent of possession ... without title ... what area? | Extent of possn only area actually possessed (3426) |
| extent of possession ... without title ... two methods? | 2 methods: in xin; w/in enclosures, natural or artificial (Souther + 3426 d), but some permanency req'd (painted line? jurisp split); 3426 d implies either/or, but Souther implies both; in x in alone very difficult |
| losing possession ... two ways of losing possession by Code? | Under Art. 3433, two manners of losing possession: manifesting intent to abandon and eviction |
| losing possession ... three ways of losing possession by doctrine? | Loss of corpus and animus = abandonment; Involuntary loss of corpus; Loss of animus alone |
| losing possession ... three ways of losing possession by doctrine? ... abandonment | Loss of corpus and animus = abandonment; Since animus is presumed, to prove someone has lost animus, you must prove it |
| losing possession ... three ways of losing possession by doctrine? ... involuntary loss of corpus ... two ways | eviction/usurpation, destruction |
| losing possession ... three ways of losing possession by doctrine? ... involuntary loss of corpus ... eviction/usurpation ... what is it? | Eviction is something strong enough to put you on notice that your dominion is seriously being challenged (Evans v. Dunn, Richards v. Comeaux) |
| losing possession ... three ways of losing possession by doctrine? ... involuntary loss of corpus ... eviction/usurpation ... when lose possession? | You instantaneously lose possession when you are evicted |
| losing possession ... three ways of losing possession by doctrine? ... involuntary loss of corpus ... eviction/usurpation ... examples from case law | Thinking of usurpation is helpful for eviction bc when 1 party evicts another, the evicting party becomes a possessor; Mowing grass not strong enough (Richards); Surveying land N (Liner); Digging a ditch Y (Liner) |
| losing possession ... three ways of losing possession by doctrine? ... involuntary loss of corpus ... destruction | Nothing in Code about it, but destruction leads to loss of possession |
| losing possession ... three ways of losing possession by doctrine? ... loss of animus alone | You will lose possession through loss of animus alone, but this isn’t regulated in the Code because it is rare |
| conflicting possession ... the five versus | Corporeal v. Corporeal; Civil v. Corporeal (winner = corporeal); Constructive v. Corporeal (winner = corporeal); Civil v. Constructive (winner = civil); Constructive v. Constructive |
| conflicting possession ... corporeal vs. corporeal | Apply rules on eviction; You cant have 2 parties at same time corporeally possessing same thing under 3433 and rules of eviction; When you have one corporeal possessor and then another corporeal possessor comes on the land, 2nd evicts 1st party |
| conflicting possession ... Civil v. Corporeal | winner = corporeal; no answer as to who wins in the Code because drafters wanted to leave who wins conflicting possession to doctrine and jurisprudence |
| conflicting possession ... constructive v. corporeal | winner = corporeal; Why? want to encourage development of land and reward hard work; Carroll counter: rules/jurisprudence/doctrine were written in early 1900s; made sense because wanted land developed; today perhaps wrong policy bc want more green space |
| conflicting possession ... civil v. constructive | winner = civil; (Souther) Prejeans civil possessors hadn’t done anything for 2 years, while Souther had constructive possession (Prejeans won); Reasoning: want to foster dev of property so preference for physical activity over disputed property |
| conflicting possession ... constructive v. constructive | who est'd 1st? 1st in time, 1st in right; Whitley (thou confus bc refers to title not const possn) says older+better const possn wins; Symenoides: who physical activity on land most recent? LaMaster: who poss'g closer to disputed area bc giving notice |
| Possessory actions are only directed at whom? | the party bringing the action, i.e. they only determine if the party bringing the action is or is not the possessor |
| what do you have to prove in a possessory action? | the person claiming possession (bringing the action) only has to prove corpus bc under 3427, animus is presumed; This presumption operates in an evidentiary fashion; The defendant in a possessory action would have to disprove animus |
| vices of possession (VoP)... what is the effect? | VoP doesn't destroy possn, but makes it judicially valueless; to be legally effective, must be free of V; if tainted by V, still have possn, but no judicial effectiveness; same w/ common law, but phrased as +a: peaceable, open, continuous, unequivocal |
| vices of possession (VoP)... four types | (according to 3435): violence, clandestine (secret), discontinuity, equivocal (uncertain) |
| vices of possession (VoP)... violent possession | Possn violent when acquired or maintained by violent acts (3436); Violence is (1) Temporary - when violence ceases, possn commences; (2) Relative - if true owner not affected, possession free from violence (i.e. cant claim violence if not against you) |
| vices of possession (VoP)... clandestine possession | Possession is clandestine when not open or public (Art. 3436); Violence is: Relative (clandestine for some and not others), Temporary (when concealment stops, possession commences) |
| vices of possession (VoP)... discontinuous ... what is discontinuous? | Possession is discontinuous when it is not exercised at regular intervals (Art. 3436); Continuity flows from a series of acts performed at normal intervals |
| vices of possession (VoP)... discontinuous ... discontinuity vs. civil possession ... list 3 remedies to problem | Continuity only applies to acquis of possn, not maintenance (civil possn applies to mainten); Civil possn only applies btwn regular acts of corpus; Continuity just restatement of abandonment – possession is discontinuous if you give up corpus and animus |
| vices of possession (VoP)... discontinuous ... discontinuity vs. civil possession ... problems with remedy 1: only applies to acquisition not maintenance | Problem 1: continuity becomes an additional requirement to corpus; Problem 2: mistakes possession with right to possess; you get possession immediately, there is no temporal issue with possession, only temporal requirement with right to possess |
| vices of possession (VoP)... discontinuous ... discontinuity vs. civil possession ... problems with remedy 2: Civil possession only applies between regular acts of corpus | Problem: reduces civil possession to fluff; we already allow possession to be discontinuous, so what does civil possession add? |
| vices of possession (VoP)... discontinuous ... discontinuity vs. civil possession ... problems with remedy 3: Continuity restatement of abandonment – discontinuous if give up corpus and animus | Problem 1: this suggests that a failure to exercise possession (discontinuity) is sufficient evidence to amount to abandonment; this doesn’t work with the presumption of animus; Problem 2: this would be redundant |
| vices of possession (VoP)... discontinuous ... how do cases apply discontinuity? | Cases are all over the map on this; some cases apply principle of discontinuity, some cases apply principle of civil possession |
| vices of possession (VoP)... equivocal | Possession is equivocal if there is ambiguity as to the intent of the possessor to own the thing (Art. 3436); Equivocal vice affects animus; This is a relative vice, so it’s only against the individuals it’s ambiguous against |
| vices of possession (VoP)... effects of vice of possession | Possession has no legal effect if it is tainted with vice; If tainted with vice, the possessor is not entitled to possessory protection |
| Precarious possession (PP) ... what is it? | exercise of possession over thing with permission of or on behalf of the owner (Art. 3437); PP-or not the possessor; he just has physical control; he lacks animus (3437 b); Precarious possessor is presumed to possess for another (3438) |
| Precarious possession (PP) ... examples of PP | Precarium (Falgoust), Lease, Deposit, Pledge, Co-ownership, Servitude |
| Precarious possession (PP) ... examples of PP ... precarium | Precarium (Falgoust) – friendly relationship which isn’t a lease, but the precarious possessor possesses with permission of the owner |
| Precarious possession (PP) ... examples of PP ... co-ownership | Problem of equivocation; ex: Carroll’s brother on deceased parents’ land. He’s a precarious possessor. He’s possessing on everyone’s behalf. But remember that the vice is relative, so only precarious against each other |
| Precarious possession (PP) ... examples of PP ... servitude | Quasi-possn of servitude; PP-or of dominant estate or thing servitude is over |
| Precarious possession (PP) ... examples of PP ... servitude ... example | Clint land locked; I grant him servitude over my prop to get to road. He's quasi-poss-or of predial servitude, but PP-or of my land. He’s got corpus by using the servitude, but no animus over land, doesn’t intend to possess as owner |
| Precarious possession (PP) ... presumption of PP | Normally presume animus, but no presumption for PP-ors, bc under 3427 presumption is only if the possessor is not possessing in the name of or for another; Under 3428, a precarious possessor is presumed to possess for another |
| Precarious possession (PP) ... terminating PP | Co-owners - must do overt and unambiguous act suff to give co-owners notice; OTHER than co-owners: must give actual notice (must be something diff than “overt and unambiguous act”); Constructive notice not actual notice; constructive notice not enough |
| POSSESSORY ACTION (PA) ... what does it take to maintain a possessory action? | 3658 CCP requires person alleging possession prove: 1. Possn @time of disturb; 2. Possn quietly and w/o interrup >1yr immed'ly prior to disturb, unless evicted by force or fraud; 3. disturbance of fact or in law; 4. PA instituted w/in 1yr of disturbance |
| POSSESSORY ACTION (PA) ... significance of time requirement? | Based on the time requirement for a possessory action, this is really a protection of the right to possess |
| POSSESSORY ACTION (PA) ... effects of possessory action? | CCP 3662: Recog Ps right to possess + restores Ps possn if evicted or maintains if not evicted; Orders P to assert petitory action w/in certain time (<60 days) or be precluded from asserting ownership later, if P prayed for such relief; Award P damages |
| POSSESSORY ACTION (PA) ... element one | possession at the time of disturbance --> Apply rules of possession |
| POSSESSORY ACTION (PA) ... element two | possession quietly + w/o interrup for yr+ immed'ly prior to disturb (unless evicted by force or fraud); protects right to possess; quiet + uninterrup = not losing right to possess; Mere disturb not interrup |
| POSSESSORY ACTION (PA) ... element two ... 2 exceptions to quiet + uninterrupted rule | Evict BY FORCE(akin to violence) rare circum in which protecting someone w/o right to possess; Evict BY FRAUD - Fraud not defined, analogize to oblig fraud (1953); misrep or suppression of truth to obtain unjust advantage or cause a loss to other party |
| POSSESSORY ACTION (PA) ... element three | 3. disturbance of law or fact (req'd for case & controversy, Art III, § 2) |
| POSSESSORY ACTION (PA) ... element three ... disturbance in fact ... eviction | Act that puts possessor on notice his dominion is seriously being challenged (jurisprudential definition in Mire); involuntary loss of corpus because of acts of another - Walking across land is not enough to be an eviction (Mire) |
| POSSESSORY ACTION (PA) ... element three ... disturbance in fact ... mere disturbance | Less than an eviction, but still must throw an obstacle in the way of your enjoyment; Walking across the land is enough for mere disturbance (Mire) |
| POSSESSORY ACTION (PA) ... element three ... disturbance in fact ... mere disturbance ... is there a threshold for meeting a mere disturbance? | yes, but 2 views for handling minor mere disturb's: 1. minor mere disturb count as mere disturb, so handle via PA, 2. minor mere disturb may count as mere disturb, but should be a substantial disturb to bring PA bc no damages given for minor mere disturb |
| POSSESSORY ACTION (PA) ... element three ... disturbance in law ... Do you have to have something recorded? (answer = no) ... | “Execution, recordation, registry, OR continuing existence of record of any instrument which ..."; The “or” should be read to be a list of alternative things, so no recordation requirement |
| POSSESSORY ACTION (PA) ... element three ... disturbance in law ... Do you have to have something written? (answer = no clue) ... view 1 | Two options for disturbance in law: (1) execution, recordation, registry, or continuing existence of record or (2) any claim or pretension of ownership; This reading suggests an oral agreement is okay because part 2 can be oral |
| POSSESSORY ACTION (PA) ... element three ... disturbance in law ... Do you have to have something written? (answer = no clue) ... view 2 | 1 option for disturb in law: exec, record'n, registry, or contin'g exist of record; options modified by being (1) right of o'ship or real right or (2) any claim or pretens of o'ship --> implies must be in writing, but what's diff btwn right and claim? |
| POSSESSORY ACTION (PA) ... element three ... disturbance in law ... Do you have to have something written? (answer = no clue) ... which of 2 views is right? | View 2 is harder to swallow from an interpretation standpoint, but the French interpretation requires some sort of writing for a disturbance in law, so we tend towards this interpretation (no cases on it) |
| POSSESSORY ACTION (PA) ... element four (possessory action instituted within a year of the disturbance) ... if disturbance of fact ... | poss-or may still be in possn of land, but if doesn't bring action w/in yr, loses mainten/possn + damages thru liberative prescrip; If eviction, after year cant demand restor'n |
| POSSESSORY ACTION (PA) ... element four (possessory action instituted within a year of the disturbance) ... if disturbance of fact ... when clock start running? | Clock starts @ commencemt of disturb, not completion; makes sense bc disturb/ fact is physical act - should notice if diligent property owner |
| POSSESSORY ACTION (PA) ... element four (possessory action instituted within a year of the disturbance) ... if disturbance of law ... when clock start running? | doesn’t start running as long as the document asserting an adverse claim remains in the public records; makes sense to delay bc public records not checked, but won't know about removal from pr, either; more reasonable rule = actual notice |
| POSSESSORY ACTION (PA) ... element four (possessory action instituted within a year of the disturbance) ... if disturbance of law ... disturbances in law don’t have to be recorded, so if not recorded, when does disturbance kick off? | Doctrine: as long as physical document exists, prescription is delayed – this makes no sense |
| POSSESSORY ACTION (PA) ... element four (possessory action instituted within a year of the disturbance) ... if disturbance of law ... what about oral disturbances? | If they are allowed (which Carroll doesn’t think so), then this is all somewhat meaningless |
| There are three methods of acquiring ownership that rest on possession: | Occupancy, Quasi-occupancy, Acquisitive prescription |
| OCCUPANCY ... what is it? | Occupancy is the taking of possession of a corporeal movable that does not belong to anyone (Art. 3412) |
| OCCUPANCY ... when does ownership occur? | Ownership via occupancy is immediate – this is huge; Occupancy usually fails because of the last element, res nullius |
| OCCUPANCY ... elements | possession, corporeal movable, res nullius |
| OCCUPANCY ... res nullius ... what does it mean? | Res nullius means owned by no one |
| OCCUPANCY ... res nullius ... two manners of becoming a res nullius: | never been owned or ceased to be owned |
| OCCUPANCY ... res nullius ... never been owned includes: | Constituents of some common things, Certain wild animals, Certain domestic animals |
| OCCUPANCY ... res nullius ... never been owned ... constituents of some common things | Under Art. 449 common things are insusceptible of ownership, so while the common thing as a whole can never be occupied, a constituent part can be occupied and it has never been owned; Ex: bottling some of the high seas |
| OCCUPANCY ... res nullius ... never been owned ... Certain wild animals | Wild animal is an animal wild by nature that is incapable of being completely domesticated due to its habit, mode of life, or natural instinct, thus requiring the exercise of art, force, or skill to keep them in subjection (comment d of Art. 3417) |
| OCCUPANCY ... res nullius ... never been owned ... Certain wild animals ... wild animals deprived of their natural liberty | Wild animals must not be deprived of their natural liberty to be a res nullius (3413); Therefore, captured wild animals, enclosed wild animals, and tamed wild animals (Art. 3416) are not res nullius |
| OCCUPANCY ... res nullius ... never been owned ... Certain wild animals ... wild animals owned by state? | Wild animals are owned by the state in its public capacity, but state only owns the animals for the purposes of conservation, not for purposes of precluding the wild animals from occupancy by others (Leger) |
| OCCUPANCY ... res nullius ... never been owned ... Certain domestic animals | Certain domestic animals (Art. 3417); Non-privately owned domestic animals are a res nullius (a contrario Art. 3417) |
| OCCUPANCY ... res nullius ... ceased to be been owned, includes ... | Abandoned things (Art. 3418), Certain wild animals (Art. 3414) |
| OCCUPANCY ... res nullius ... ceased to be been owned ... Abandoned things | 3418; Abandonment is when the owner relinquishes possession with the intent to give up ownership (basically, you give up corpus and animus) |
| OCCUPANCY ... res nullius ... ceased to be been owned ... certain wild animals | 3414; This refers to wild animals that have at one time been captured, enclosed or tamed; they can regain their res nullius status if they (1) regain their natural liberty and (2) the owner fails to immediately take measures to recapture |
| QUASI-OCCUPANCY ... what is it? | Quasi-occupancy falls somewhere between occupancy and acquisitive prescription; it is not in the code |
| QUASI-OCCUPANCY ... includes: | lost things and treasure |
| QUASI-OCCUPANCY ... lost things ... what is a lost thing? | 3419; (applying common meaning) thing misplaced thru owner’s negligence + lost by acts of God; Different from abandoned thing bc (1) not res nullius (2) no intent to give up animus; Diff from stolen thing bc not taken by 3rd party w/o consent |
| QUASI-OCCUPANCY ... lost things ... elements | Diligent effort to find the owner; Comment d suggests this may involve putting an ad in the paper; Wait three years |
| QUASI-OCCUPANCY ... lost things ... why is this not occupancy? | Not immediate; lost things require 3 year wait; Not res nullius; Lost things do not meet the last two requirements of occupancy |
| QUASI-OCCUPANCY ... lost things ... Why is this not acquisitive prescription? | Loses on pro subjecta materia argument; Also, acquisitive prescription does not require as much as quasi-occupancy because acquisitive prescription does not require a diligent effort to find the owner |
| QUASI-OCCUPANCY ... treasure ... what is treasure? | 3420; Treasure is a movable hidden in another thing for such a long time that its owner cannot be determined; Half of treasure belongs to finder and half belongs to owner of the thing in which it was found |
| QUASI-OCCUPANCY ... treasure ... why not occupancy? | No res nullius because it has an owner, the owner is just not determinable |
| QUASI-OCCUPANCY ... treasure ... why not acquisitive prescription? | no time requirement |
| ACQUISITIVE PRESCRIPTION ... what is it? | Acquisitive prescription is the acquiring of ownership or other real rights by possession for a period of time (Art. 3446) |
| ACQUISITIVE PRESCRIPTION ... purpose? | Protect real owner by freeing owner of burden proving ownership back to King of Spain; Justice btwn real owner and possessor bc encourages owner to take action and/or rewards possessor for taking action; social order, prevents return to mercenary state |
| ACQUISITIVE PRESCRIPTION ... effects? | When prescription is completed, the possessor becomes owner or gains the real right; applied retroactively |
| ACQUISITIVE PRESCRIPTION ... effects? ... how applied retroactively? | Ownership via prescrip applied retro'ly; Real rights created by true owner are retro'ly inval; Possessor’s actions on property are retroactively validated; Person getting ownership via prescrip keeps fruits and products gained during prescriptive period |
| ACQUISITIVE PRESCRIPTION ... Common elements of all types of acquisitive prescription | (1) thing susceptible of acquisitive prescription, (2) possession, (3) period of time |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 1. Thing susceptible of acquisitive prescription ... authority | Authority for requirement: Art. 3475 (for 10 yr good faith) plus Art. 3488 (30 yr bad faith) plus nothing in movables section, but this is considered an oversight |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 1. Thing susceptible of acquisitive prescription ... common things susceptible? | not susceptible because cannot be owned by anyone |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 1. Thing susceptible of acquisitive prescription ... public things susceptible? | not susceptible (comment b of Art. 3485) |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 1. Thing susceptible of acquisitive prescription ... private things susceptible? | are susceptible of prescription, unless prescription is excluded by legislation (Art. 3485) |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 1. Thing susceptible of acquisitive prescription ... private things excluded by legislation? | No prescrip against state (Art. 12, § 13); doesn't apply to other govt entities (City of New Iberia v. Romero); Cities can file recordn 9:5804 estab'g things as pub prop to prev AP; land/mineral interests cant lose by prescrip (Art. 9, § 4 + pub policy) |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 2. possession | requires corpus+animus+no vice; Possn must have corp possn, or civil possn preceded by corp possn to acquire thing by prescrip (3476); no construct possn? A contrario yes, logically, no; 3426 c (construct possn article) says it does cover prescription |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 3. possession for some period of time (x years) ... tacking? | To possess for the needed period of time, a person may be able to transfer/tack on the possession of his/her ancestor |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 3. possession for some period of time (x years) ... to transfer/tack, there must be a ... | juridical link (comment d of Art. 3442); Juridical link is some sort of act that transfers a right or thing from one party to another; juridical link can arise through a universal successor or a particular successor (defined in Art. 3506(28)) |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 3. possession for some period of time (x years) ... tacking ... diff between universal and particular successor? | UNIVERSAL successor is heir, univers legatee, general legatee; Continues in ancestor’s possn w/all of ancestor’s vices; PARTICULAR successor is a donee, buyer, legatee of particular things; Begins new possession w/o ancestor’s vices |
| ACQUISITIVE PRESCRIPTION ... Common elements of AP ... 3. possession for some period of time (x years) ... tacking ... diff between universal and particular successor? ... wrt EXTENT of tacking? | UNIVERSAL successor tacks all rights of ancestor (spatially unrestricted); PARTICULAR successor tacks only rights included in title; Excep: partic successor may tack beyond title if property is adjacent + visible boundary (794, shown in Brown v. Wood) |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in BF | (30 year; ordinary) Under Art. 3486, only additional requirement is the length of time is 30 years |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF | (10 year, extraordinary, abridged) Art. 3475 establishes the requirements: (1) just title, (2) good faith, (3) 10 years |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) | Just title is defined in Art. 3483 and has the following requirements: (1) juridical act, (2) real title, (3) translative title, (4) nearly valid title, (5) written title, (6) recorded title |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... juridical act | A juridical acts is a licit act intended to have legal consequences (comment b of Art. 3483); examples are a sale or donation |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... real title | Real title (according to comment e of Art. 3483) must be certain and proved; A title which does not exist but is believed to exist is called a putative title; this is not a real title |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... translative title | Translative title must be sufficient to transfer ownership if the true owner had executed it (comment b of Art. 3483) |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... translative title ... 3 distinctions from translative titles: | Declarative acts, Acts involving personal rights, Acts involving suspensive conditions |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... translative title ... 3 distinctions from translative titles ... declarative acts | these acts declare what is already true; they do not transfer ownership; Ex: judgment of possession, partition in kind (however, a partition by licitation is a translative title) |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... translative title ... 3 distinctions from translative titles ... acts involving personal rights | ex: lease |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... translative title ... 3 distinctions from translative titles ... acts involving suspensive conditions | Before condition fulfilled, title is not translative; When start counting? Obligations says they're retroactive; Yippi’s editor’s note regarding recordation implies that all reqts must be fulfilled bf clock begins |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... nearly valid title | Nearly valid title looks on its face valid; NO: Formal invalidity (form defect) OR Absolute nullity (ex: Clayton v. Rickerson, abs nullity bc succession rep got property from succession; relative nullity (drunkenness) does NOT render title unjust |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title (types) ... recorded title | Again with timing, comment d suggests that the prescription period begins running on the day of filing for registry; Yippi’s editor’s note says that all elements must be met before prescription starts running |
| ACQUISITIVE PRESCRIPTION ... specific types ... immovables in GF ... just title ... can get just title from someone who got property unjustly? | Just title can be obtained from someone who got property via unjust title; the “justness” of the title for the previous person does not affect my justness of title (though it may affect my good faith) |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith? | Art. 3480: 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 |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... objective and subjective aspects? | Good faith has a subjective and objective aspect: Objective, “objective considerations” ... ”reasonably believes”; AND Subjective, “when he reasonably believes…” |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... at what point is good faith necessary? | Good faith is only necessary at the commencement of possession; subsequent bad faith does not prevent accrual of 10 year prescription (Art. 3482) |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption? | 3481; shifts the burden of proof; presumption rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses; Therefore, if you can show some objective or subjective bad faith, then you can defeat good faith |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith (list) | errors of law and fact; Quitclaims (disclaiming ownership of any rights the “owner” may have; sale made without warranty of title); Clouds on title in public records (Phillips v. Parker); Errors of law (Lacour v. Sanders) |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith ... Errors of law and fact | Art. 3481 says that neither error of fact nor error of law defeats this presumption, but this is too far; An error of fact can defeat objective good faith |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith ... quitclaims (QC) ... what is QC? | disclaiming ownership of any rights “owner” may have; sale w/o warranty of title; QC alone not BF, need more |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith ... quitclaims (QC) ... QC alone proof of BF? | QC alone not BF, need more; Hunter - QC plus simultly bought warrant sale and non-warrant sale; Malone - extremely below market price + diff last name btw current and last record owners |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith ... clouds on title in public records | For GF, dont have to do record search; If do, not automatically in BF(Phillips); instead totality of the circums; Why? don’t want to discourage people from doing public records search; counter? should be charged w/ construcvly knowing what’s on p records |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... good faith ... good faith presumption ... evidence of bad faith ... errors of law | Ignorance of the law is not sufficient alone to show bad faith (Lacour) |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... length of time (delay) ... can tack? | Don’t have to have time on your own; you can tack |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... length of time (delay) ... tack with particular successor? | you can only tack if a particular successor for 10 year acquisitive prescription purposes if both you and your ancestor met all of the 10 year acquisitive prescription reqts (Bartlett v. Calhoun) |
| ACQUISITIVE PRESCRIPTION requirements ... immovables in good faith ... length of time (delay) ... tack with universal successor (US)? | US takes on ancestor’s possession, so doesn’t matter if successor in BF; only matters if ancestor was in BF; Vice versa, if ancestor was in BF + successor in GF, successor still no benefit of 10yr AP, even if successor possesses for 10 yrs on his own |
| ACQUISITIVE PRESCRIPTION requirements ... movables in bad faith | Art. 3491, Only requirement is 10 years; Examples are in Lieber and Gibbs |
| ACQUISITIVE PRESCRIPTION requirements ... movables in good faith ... 3 requirements: | good faith, act translative of ownership, and 3 years |
| ACQUISITIVE PRESCRIPTION requirements ... movables in good faith ... 3 requirements ... 1. good faith | Good faith is the same for movables and immovables |
| ACQUISITIVE PRESCRIPTION requirements ... movables in good faith ... 3 requirements ... 2. act translative of ownership | Diffs from just title (used for immov) + act trans/ ownership (for movables); Movables don't need written or recorded title (all other elements/ just title apply); Why? No pr doctrine for movables + sale (juridical act) of movable doesnt require writing |
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scottsmith81
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